6 Utah 115 | Utah | 1889
Tbe defendant was convicted in tbe first district court at Provo of perjury committed in violation of section 5392 of tbe Bevised Statutes of tbe United States, wbicb is as follows: “Every person wbo, having taken an oatb before a competent tribunal, officer, or person, in any case in wbicb a law of tbe United States authorizes an oatb to be administered, that be will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oatb states or subscribes any material matter wbicb be does not believe to be true, is guilty of perjury.” Tbe perjury is alleged to have been committed while defendant was being examined on bis voir dire to determine bis competency to serve as a grand juror in, tbe first district court at Provo. He was examined as to such competency under section 5 of what is known as tbe “Ed-munds Law,” wbicb provides as follows: “That, in any prosecution for bigamy, polygamy, or unlawful cohabitation, it shall be sufficient cause of, challenge, to any person drawn or summoned as a juryman or talesman, that be believes it right for a man to have more than one living and undivorced wife at tbe same time; or to live in tbe practice of cohabiting with more than one woman; and any person appearing of offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existance of any such cause of challenge, and other evidence may be introduced bearing upon the question, or raised by such challenge, and this question shall be tried by the court.” And that, while being so examined, he testified that he did not believe it right for a man to have more than one living and undivorced wife at the same time, and that he did not believe it right for a man to live in the practice of cohabiting with more than one woman, and that he did not believe in polygamy or a plurality of wives. This testimony
The only question presented is, does the evidence warrant the verdict? In the case of United States v. Harris, 19 Pac. Rep., 197; 5 Utah, 437, where the same question was presented, this Court stated the principles which shall govern, as follows: “The jury are the judges of the facts, and, in order to justify this Court in reversing the order refusing a new trial, it must appear that there was an entire absence of evidence, or that the evidence' so clearly preponderates in favor of the prisoner as to suggest the possibility that the verdict was the result of misapprehension or partiality. It is not enough that the Court might have arrived at a different result.” We are satisfied with the rule thus stated, and it only remains to test the case at bar by it. It is not contended that the evidence was sufficient to establish the fact that the defendant testified as charged in the indictment, but the claim is that the evidence failed to show that it was false. The evidence that the defendant testified as charged in the indictment consisted, among other things, of the testimony of the stenographic reporter who attended and took the evidence when the defendant was examined, and his transcribed minutes are in full in the record, from which it appears that the defendant was called as a grand juror, and was challenged by the government counsel upon the ground that he believed it right for a man to have, living and un-divorced, more than one wife at the same time, and to live in practice of cohabiting with more than one woman; whereupon he was sworn and examined, and, in an examination which covers several pages, and in which the Court and counsel for the government both participated, he repeatedly testified that he did not believe it to be right; that he believed it to be wrong, both legally and morally; and that he did not believe in polygamy. The questions were repeated to him many times over, and in various forms, and the same answer repeated. To show the falsity
It will be seen from this statement of the testimony that evidence was given showing that defendant asserted a belief contrary to his testimony, and in accord with the doctrine of the organization of which he was an active member a short time before his testimony was given, and that, when he was approached reprovingly by members of his church and others for giving the testimony he did, he asserted a belief contrary to his testimony, and undertook to explain that it was past belief, and was actual knowledge. It is unnecessary for us to consider this claim, for he testified that he “ believed it was wrong,” and the jury were justified in finding that this claim was made in bad faith It is claimed by counsel that the testimony only shows that two inconsistent statements were made by the defendant— one under the sanction of an oath, and another without it— and that the presumption is that the statement under oath is true, and must prevail. We think there were strong circumstances shown to corroborate the statement made out of Court, and before he was examined, and that the statements made by him afterwards were in the nature of confessions. If this claim of the defendant is correct, then it would be impossible to show that the testimony is untrue, unless he had been actually guilty of polygamy or unlawful cohabitation, and such persons are disqualified