4 Utah 280 | Utah | 1886
The defendant was convicted of the crime of unlawful cohabitation and sentenced to imprisonment in the penitentiary for the term of six months, and to pay a fine of three hundred dollars and the costs of the prosecution. Prom this judgment he has appealed to this court, and insists that the evidence is insufficient to justify the verdict.
At the commencement of the trial the defendant admitted before the court and jury that he had married each of the seven women named in the indictment; had not been divorced from either, and that he claimed all of them as his wives and furnished them support.
It appears from the evidence that appellant was first married more than forty years ago in Nauvoo, Illinois, to two women, Adeline and Charlotte, at the same time and by one ceremony (the latter of the two women has since died); and that he has since married in the order named, Sarah, Harriet, Eleanor, Mary, Phoebe, and Minnie, also one other, Caroline, now deceased. The last marriage was in 1871. The first marriage was unlawful because the marriage with two women at the same time is void. Therefore Sarah is the lawful wife. The evidence shows, and it is admitted by defendant, that he has lived and cohabited with the youngest and last wife since his marriage to her,
Sarah Snow, the lawful wife, was introduced as a witness without objection, and with other testimony gave the following: She married defendant about forty years ago, and now has grown children by him; she lives, at the old homestead in company with Harriet and Eleanor, and has been living there nearly thirty years; five years ago Minnie lived in one wing of the old homestead, and defendant lived with her part of the time; up to the time Minnie came there defendant boarded with witness; she has never been divorced; defendant has supported her; their social intercourse has been friendly, and he calls on her occá-sionally; he calls less freqently as he grows older. In answer to the question, “State if it is not about the only difference in your relations in living that he does not call to see you as often as he did formerly?” Witness stated: “Well, sometimes he calls and sometimes he don’t call. I do not see him as much as I did five years ago, for he lived right there five years ago; he does not visit me as much as he did when he boarded with me. Five years ago he lived right there, next door.” Witness also said on cross-examination that she has five children; that two live at home, and the youngest is twenty-two years old; that defendant, whenever he goes home, passes by the door — that being-one way to go, passing through the lot; that witness went away in the spring of 1885, and that defendant was away six or seven' months; that he has called on her two or three times during 1885, and would remain perhaps half an hour; that since defendant moved to the new brick house with his last wife he has never slept in the house where witness has slept, and no room is kept for him; that when he came he would generally be busy with their son; that his calls of • late were principally with their son; that he would inquire if they were getting along all right.
Harriet Snow, another wife, stated that she was married to defendant forty years ago, in December of that year; that he is the father of her children, and that she lives in her own home, which appellant provided for her, and that he arranges for her support; that he had visited her a few
Eleanor Snow, another polygamous wife, among other things stated: “I guess I recognized him as my husband and he me as his wife during 1885; don’t know; the difference in our relationship the last year and formerly is he does not live at my place.' I guess the only difference is he is not in my comijany so much — you understand. Previous to that, he had visited and dined with me once in a while. When he dined with me, it was with me and my children, unless there was company to these family gatherings. Mr. Snow occupied the position as head of the family and occupies the head of the table when he is there; his friends all put him at the head of the table.”
Dr. J. B. Carrington testified that in 1885 he saw defendant in company with Sarah — out riding with her; another woman was in the carriage — thought it was Harriet; that he also saw defendant and Sarah sitting together in the theatre, in the part of the house usually occupied by the Snow family, and that they afterwards went out together. In the city where defendant lives he and his various wives and their families appear from the
It appears from the evidence that appellant boards -and lodges with his last wife, and visits his other wives occasionally, though not very often; that during the year 1885 he has not lodged or taken a meal with any • one of the others; that he furnishes them houses to live in, and supports them; that he introduces them publicly as his wives, and by his language and conduct holds them out to the world as such. The evidence proved beyond controversy that defendant cohabits with his polygamous wife Minnie. The remaining fact to find from the evidence is, Has he at any time during the year 1885 cohabited with the other women named in the indictment, or any one of them? It appears from the evidence that defendant is seventy-two years old, and has married nine wives,» and that seven of those wives are still living. To the first he was married in his youth. As his passion for one wife became satiated, and dulled by indulgence and gratification, and as his lust was again kindled by the appearance of a younger and fresher, or possibly a more attractive
A lawful marriage of itself affords a strong presumption of matrimonial cohabitation, because such cohabitation is in accordance witb duty and usually attends shell a marriage. When to this presumption are added tbe further inferences from tbe following facts: that defendant claimed Sarah all tbe time as bis wife, and that she claims to be such; that be provides for her a home, and tbe necessaries and comforts of life; that they were on good terms; that be took ber to tbe theatre, out riding, visited ber occasionally at ber home, and was tbe father of ber children — tbe conclusion removes every reasonable doubt that be cohabited witb her as bis wife. When they were associating together she was not bis paramour or bis friend simply — be then bad and still has all tlie rights and opportunities of a husband, and slie those of a wife. . They were living together. . Under such circumstances tbe law will not permit them to say they were together merely as friends, and not as husband and wife.
It is not essential to matrimonial cohabitation that tbe parties should be together all the time if their intercourse and relations are agreeable and they associate together some part of tbe time. In that case tbe law does not notice tbe intervals of separation. Owing to tbe necessities of human life, and tbe claims of business and trade, married people are often in each other’s company less for long periods than tbe defendant and bis wife Sarah were during tbe year 1885, and yet they are regarded as cohabiting as man and wife. Such is often tbe case with mariners, traveling salesmen, and other classes of per
Tlie third section of the Act of Congress of March 22, 1882, was intended to reach such conduct as the evidence proves the defendant guilty of: “If any male person . . . . cohabits with more than one woman, lie shall be deemed guilty of a misdemeanor,” etc. When the entire act, of which the above quotation is a part, is taken and considered together in the light of the occasion and necessity of its enactment, and of the evil it was intended to remedy, we are of the opinion that the term “cohabit” should be given a broad meaning. In construing the term, regard should be had to the spirit and general intent of the act. “It is an established rule in the exposition of statutes that the intention of the law-giver is to be deduced from a view of the whole and every part of a statute, taken and compared together. When the words of a statute are not explicit, the intention is to be collected from the context— from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view; and the intention is to be taken or presumed according to what is consonant to reason and good discretion.” This was the rule laid down by Plowden, pp. 10, 57, 205, 363, and by these maxims Chancellor Kent affirms “the sages of the law have ever been guided in searching for the intention of the legislature,” and commends them “as maxims of sound interpretation, which have been accumulated by the experience and ratified by the approbation of ages:” 1 Kent’s Com., 462; Potter’s Dwarris on Statutes and Constitutions, 196, note 13.
In construing the term “cohabitation,” as used in the act under consideration, the supreme court of the United States say, in the case of United States v. Cannon, 116 U. S., 55. “It is the practice of unlawful cohabitation with more than one woman that is aimed at — a cohabitation classed with polygamy and having its outward semblance. It is not, on the one hand, meretricious unmarital intercourse with more than one woman. G-eneral legislation as to lewd practices is left to the territorial government; nor, on the other hand, does the statute pry into the
This court, speaking by Boreman, J., said: “What then was the object of the Congress in enacting this statute? It was, judging from the whole act, intended to be an aid in breaking up polygamy and the pretense thereof:” United States v. Cannon, ante p. 122. The opinion of this court in case of United States v. Musser, ante p. 153, is to the same effect: “It appears plain that the intention was to protect the monogamous marriage, by prohibiting all other marriage, either in form or in appearance only, whether evidenced by a ceremony, or by conduct and circumstances alone.The end of the law was the protection of the monogamous marriage, and the suppression of polygamy and unlawful cohabitation were but means to that end. It is proper also to take into consideration the conditions as the national legislature anticipated and understood them —in which the law was to be applied and enforced. They knew the time had elapsed within which a very large portion of those living in polygamy could be punished for' that offense, and that many of these were among the most influential men in society, being the heads of the church: and that the example-of their continuing to live with their plural wives under a claim of divine right would be a scandal to society and a menace to the lawful marriage; that such examples would be a continuing invitation and an apparent justification for their followers, either secretly or openly, to violate the law. Congress, therefore, forbade plural marriage in appearance only, as well as in form, and by the example of punishment it doubtless intended to eradicate the example of apparent plural marriages, as well as the plural marriage in form.”
The evidence against the defendant shows one of the
The defendant excepted to certain parts of the charge given in the lower court, and assigns the giving thereof to the jury as error. The charge appears to have been an oral one, and does not consist of separate instructions. Each part of it should be regarded as qualified by the. other portions. If the paragraphs -excepted to were not misleading when so considered, they should • not be regarded as erroneous. The portion first excepted to is, “It is not necessary that the evidence should show that the defendant and these women, or either of them, occupied the same bed, slept in the same room, or dwelt under the same roof; neither is it necessary that the evidence should show that within the time mentioned in the indictment the defendant had sexual intercourse with either of them.” This was a statement of facts not necessary to be shown by the evidence, and was immediately followed by a statement of essential facts, as follows: “The question is, Were they living in the habit and repute of marriage? The offense of cohabitation is complete when a man, to all outward appearances, is living and associating with two or more women as wives. When the portion of the charge 'objected to is taken with that which immediately followed, the jury must have understood that if the defendant and any two of his wives were living in the habit and repute of marriage, and to all outward appearance they were living and associating together as man and wife, it was not necessary to show that they occupied the same bed, slept in the same room, dwelt under the same roof, or that they were guilty of sexual intercourse.
The jury must have understood that it was necessary for them to believe from the evidence that the defendant, and at least two of Ms wives lived and associated together as man and wife to all outward appearances, and that it was
Counsel for appellant also assign as error the giving of the following as a part of the charge: “The question is, Were they living in the habit and repute of marriage? The offense of cohabitation is complete when a man, to all outward appearances, is living or associating with two ox-more women as wives. If the conduct of defendant has been such as to lead to the belief that the parties were living as husband and wife live, then the defendant is guilty.” This paragraph must be considered with the one in which the jurors were instructed that they must be satisfied of the defendant’s guilt beyond a reasonable doubt before they could convict.
The defendant also excepted to the following clause of the charge, and assigned the giving thereof as error: “Of course, the defendant might visit his children by the various women, he may make directions regarding their welfare, he may meet the women on terms of social equality; but if he associates with them as a husband with his wife he is guilty. The Edmunds law says there must be an end of the relationship previously existing between polygamists. It says the relationship must cease.” So much of the clause as stated that defendant might visit his children, make directions regarding their welfare, and might meet his wives on terms of social equality, was quite as favorable to the defendant as he could ask; and the further statement, “but if he associated with them as a husband with his wife he is guilty,” was a rather meager statement of whafc had been stated more fully in the preceding part • of the charge. The remark that “the Ed-munds law says there must be an end of the relationship previously existing between polygamists,” and that “it says that the relationship must cease,” was evidently made inadvertently. It was a disconnected affirmation, intended to be a declaration of the general intent and purpose of the law known as the Edmunds law. As a statement of the purpose of the law it was correct. That act was doubtless aimed at polygamy, and intended to put an end
We are of tbe opinion that tbe exceptions of tbe defendant to tbe ruling- of tbe trial court in admitting and refusing evidence are not well taken.
Tbe action of tbe court in refusing certain requests asked by the defendant is also assigned as error.
Tbe second, third, and fifth of them related to tbe definition of tbe term “cohabitation,” as used in tbe law which tbe defendant was charged with violating. That term was defined in tbe charge with sufficient clearness to enable tbe jury to understand its meaning in view of the evidence. In tbe fourth request certain conduct was mentioned that would not constitute tbe offense, and tbe request was not necessary to be given.
Tbe sixth request was given, in substance, in tbe charge, so far as it was proper. And we are of tbe opinion that tbe seventh and eighth requests referred to matters in regard to which it was unnecessary to charge tbe jury. Tbe charge, as given, covers all tbe points upon which it was necessary to instruct tbe jury, and was quite full, and substantially correct.
After a careful examination of this record we find no ground sufficient to reverse tbe judgment of tbe district court, and it is therefore affirmed.