5 Utah 608 | Utah | 1888
Lead Opinion
' The appellant was convicted of the crime of polygamy. Upon the calling of the case in the district court, the defendant moved the court to quash or set aside the indictment on the ground that the indictment was found on the evidence of an incompetent witness; that said alleged incompetent witness was the legal wife of the defendant, and was compelled against her own will and against the will of the defendant, to testify before the grand jury that found the indictment. The motion to quash was overruled in the district court, and the defendant has appealed the case to this court. The statute upon which the defendant bases his objection to the indictment reads as follows: "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined
The respondent objects to the motion to quash as not being based upon any ground authorized by law; that the fact that an indictment was found solely upon the testimony of an incompetent witness is not, under our statutes ground for setting aside or quashing an indictment. The statute specifies four grounds for setting aside an indictment, and that set up in the motion is not embraced in any of them. The first ground set forth in the statute is the only one that could by any possiblity be construed as embracing it; but we deem that it is settled by the practice in this territory, and by decisions under similar statutes, that the ground of the motion to quash is not within the statute. People v. Colby, 54 Cal., 37;. State v. Logan, 1 Nev., 509. Indeed, we do not understand the counsel for the defendant as contending that it comes within the statute; but they claim that outside of the statute, under the common law practice, the indictment should have been quashed. We do not, however, see any ground for such position. With the statute before us, we find no authority to go outside of it. The first section of the criminal procedure act says “that the mode of procedure in criminal cases in the courts in this territory shall be as as prescribed in this act.” Laws of 1878, p. 60. We deem this
Dissenting Opinion
dissenting.
While I am of the opinion that a man who has a lawful wife commits a crime against her by entering into polygamy, I do not think that section 1156 of the Laws of Utah, quoted in the opinion of the court, should be applied in the trial of a person charged with a crime against the laws of the United States. In the case of U. S. v. Reid, 12 How., 361, Chief Justice Taney, in delivering the opinion of the court, said: “But it could not be supposed, without very plain words to show it, that Congress intended to give the states the power of prescribing the rules of evidence in trials of offenses against the United States; for this construction would in effect place the criminal j urisprudence of one sovereignity under the control of another. It is evident that such could not be the design of this act of Congress, and that the statute of "Virginia was not the law by which the admissibility of Clements as a witness ought to have been decided.” If the court could not presume “that Congress intended to give to the states the power of prescribing rules of evidence in trials of offenses against the United States,” for the reason that “it would in effect place the criminal jurisprudence of one sovereignty under the control of another,” ought -the court to assume that Congress intended to give to the territories power to prescribe such rules of evidence in the trial of United States criminal cases? Such territories are not