8 P. 295 | Ariz. | 1885
These three cases having been tried before the Third judicial district court, at Prescott, Chief Justice Howard, who presided at the trials, submitted the questions involved in the record on appeal to Judges Pinney and Fitzgerald. The facts involved in the three cases being similar, the questions of law in each case identical, (with the exception of the question of the admissibility of evidence of general reputation to prove the marriage relation, which question arose only in the Ouse of Tenney, no evidence of general reputation having been offered in the other cases,) by stipulation of parties the three cases were argued and submitted together.
The defendants were each convicted of the crime of polygamy, as charged in the first count of the respective indictments. Motion for a new trial was made in each case, and denied. The defendants were each sentenced to imprisonment in the Detroit house of correction for the period.of three years and six months, and to pay a fine to the United States of $500. From the order overruling the motion for a new trial, and from the final judgment, the appeal is taken to this court.
The first assignment of error refers to the overruling of the demurrer to the first count of the indictment, on the ground that the facts alleged constituted two distinct causes of action. The first count, it is true, contains more than was necessary to properly charge the crime of polygamy, but the objectionable words, referring only to cohabitation after properly alleging the polygamous marriage, were clearly surplusage, and could not have misled or worked injury to the defendant. The first count charges the crime substantially in the language of the statute creating and defining the offense. The incorporating into the first count words in excess of what was absolutely necessary to charge the offense, not materially affecting, rendering doubtful, and by no possibility expanding, the offense charged, are but surplusage. It was clearly the intention of the pleader to charge the statutory offense of polygamy in the first and second counts of the indictment, and the offense of unlawful cohabitation by the third count. To say that the expansion of the first count, by the addition of language reciting cohabitation
The second assignment refers to the ruling of the court in the Tenney Case, the question not arising in the other cases submitted, in allowing the witnesss Hubbell and Barth to testify to the general reputation, in the community where they lived, as to the relation of husband and wife existing between defendant Tenney and his wives. The jury were distinctly charged that the evidence of general reputation, standing alone, would amount to nothing in such a ease; that it was only an incident and circumstance to be considered in connection with all the other proof and circumstances, there being no positive proof of an actual marriage ceremony, to enable the jury to find and determine either the main fact charged, the polygamous marriage, or the unlawful cohabitation. The doubt surrounding the admissibility of this character of evidence is removed by a reference to the territorial statute, to' which it appears the trial court resorted, in the absence of a congressional enactment or regulation on the subject. Section 123, e. 10, Comp. Laws, provides:
“It shall not be necessary to prove either marriage by the register or certificate thereof, or other record evidence; hut the same may he proved hy such evidence as is admissible to prove a marriage in other cases.”
That reputation is competent in “other cases” there can be no doubt. 1 Bish. Mar. & Biv 438, 439; 2 Greenl. 461, 462. If there was doubt as to the propriety of resorting to this character of evidence in a criminal ease, in view of the statute above cited, and the charge of the court as to the proper application of that class of evidence that it was but secondary and circumstantial,—not sufficient in itself to warrant the finding of the polygamous marriage or cohabitation,—we are of the opinion that the defendant has no ground to complain of its admission. Considering the silence
The fourth assignment refers to the testimony admitted by the court as to facts occurring without the jurisdiction of the court more than three years before the finding and presentation of the indictment. A sufficient answer to this objection is found in the fact that the record shows the defense to have “opened the door,” and by the introduction of evidence as to what had occurred in Utah and other places before the time when it was by the indictment alleged that the defendants committed the crime of polygamy in Arizona, fully justified the court in allowing the prosecution to follow the defense over the wide range it had covered by its questions to the witness.
We are of the opinion, however, that the evidence, when confined, as it was by the charge of the court, to an interpretation of the character of the relation existing between the defendant and his two wives; and guarded as it was by the emphatic charge of the court as to the duty of the jury in finding the polygamous marriage within the district, and within the time alleged in the indictment,—could have done no injury to the defendant. And in view of the fact that the defendant first introduced, by repeated questions to plaintiff’s witnesses, this evidence to which he now objects, we hold that he should not now be heard to except to it. A party who shrinks from an exposure of his ancient peccadilloes ought not to put them in evidence; having done so, he cannot be heard to complain that the court allowed the other party to follow in his lead.
The sixth assignment is fully answered by the consideration of the fourth and fifth.
The remaining assignments of error upon which the appeals in these cases are based refer to the charge of the court. We might dispose of the question raised by these assignments by the simple statement that the exceptions to the charge of the court are general, not specific; and do not, to any extent, designate the particular charge, part of charge, modification of request, or refusal to charge, to which defendant takes exception, or which he here incorporates into the record as the basis of the allegation of the erroneous charge of the trial court. We prefer, however, to consider the charge upon its merits, as a correct exposition of the law applicable to the case. We enunciate as the correct principle, in the consideration of the charge of the court, that the whole and entire charge should be considered together; that a dissection and presentation of isolated, fragmentary portions of the charge, so separated and divided as to pervert the meaning and sense which would naturally follow a consideration of the whole, is not the legal or fair presentation to the appellate tribunal of the charge and
Congress has legislated for the punishment of the violation and -prostitution of the marriage relation. It has .not defined marriage. It has not formulated or provided any method or prescribed the character of proof in such cases. The alleged offense was committed, as the jury under the charge of the court below must of necessity have found, within the limits of the Third judicial district of the territory of Arizona, and within the time fixed as the limitation by the .so-called “Edmunds Anti-Polygamy Law.” To apply the existing territorial law defining marriage and prescribing the method of its proof, in our opinion was clearly within the rule recognized in all cases where congressional laws are sought to be enforced by courts possessing jurisdiction of United States eases in the territories. The assumption and assertion that the appellant was indicted under the law of congress, and tried under and by the rule of the territorial law, is not warranted by the facts disclosed by the record. The resort by the court to the territorial legislative definition of marriage, and the method of
“This rule prevails, that where, in matters of practice, the statute laws of the United States are silent, in the territory or state where United States courts are held for the trial of causes under the United States statutes, the local statutes may be invoked for the purpose of interpreting the law governing the practice and conducting the proceedings of the court.”
By a subsequent portion of the charge it is apparent, and the jury was so charged, that the interpretation referred to applied only to the constituent elements of a marriage contract, and to the method of its proof. This portion of the charge was confined to a reading of the statute, (section 1891, Comp. Laws Ariz.,) as follows:
“Sec. 1891. Marriage is considered in law as a civil contract to which the consent of the parties is essential.”
As to the manner of proving polygamous marriages, the court referred to a portion of section 123, c. 10, Comp. Laws, which reads as follows:
“It shall not be necessary to prove either of said marriages by the register or certificate thereof, or other record evidence, but the same may be proved by such evidence as ■is admissible in other cases; and when such second marriage shall have, taken place without this territory, cohabitation in this territory after said second marriage shall be deemed the commission of the crime of bigamy.”
It is clear that, in the absence of this statute, a charge
Upon a careful examination of the whole record, including the charge of the court in the three cases, we are satisfied that the defendants had fair and impai’tial trials. It is due the trial court to state that no precedents existed in this territory by which it might be guided in cases under the so-called “Edmunds Act.” We fail to find in the record any material error. For these reasons the court is of the opinion that the motion .for a new trial was properly overruled, and that the judgment was correct.
The facts in these eases are conceded to be about the same in each case. The record in the Tenney Case is the only one brought up. Six witnesses were called and sworn on behalf of the government. The defendant introduced no proof in his own behalf. The question is, do the facts as testified to make a case in the law? The evidence, as given by the different witnesses, is nearly the same, and consists mainly in admissions made from time to time by the defendant. Tenney, the proofs show, lived with two women in the same house, and by them had several children which were admitted by the defendant to be his children. The women were known as Mrs. Anna Tenney and Mrs. Eliza Tenney. At the store of Mr. Barth, the defendant gave orders to let his two wives, Anna and Eliza, have goods, which was done at different times, and paid for by him. Mr. Traner, the clerk at the store, testified :
“He has acknowledged to me that these two women were his wives; that it was better to have two wives than be running around after other women.”
“He always gave us orders to let the women and children have what they wanted when they came to the store, and charge it to him. He paid the account. The general reputation is that these two women are defendant’s wives. At the windmill, three or four years ago, first one came in, (Anna.) and he said, ‘This is my wife;’ and then when Eliza came in, he said, ‘This is my other wife.’ ”
And to all of the witnesses the defendant has, at different times and places, stated that both these women were his wives. In Miles v. United States, 103 U. S. 304, the defendant was indicted for bigamy. The indictment charged that “Miles did, on the twenty-fourth day of October, 1878, at Salt Lake county, in the territory of Utah, marry one Emily Spencer, and that afterwards, and on the same day, and at the same county, did marry one Catherine Owens.” On the trial of that ease certain declarations and admissions made by the defendant concerning his marriage were admitted in evidence. What those admissions were does not appear, but concerning them the Supreme court says:
“The declarations of plaintiff in error touching his marriage with Emily Spencer, admitted in evidence against him, appear to have been deliberately made, and under such circumstances as tended to show that they had reference to a formal marriage contract between him and her. We are of the opinion that the district court committed no error in admitting such declarations.”
Counsel for defendant insists that the record in this case discloses no admissions by Tenney of any “formal marriage contract” with either Anna or Eliza, and no admission of any marriage contract at all, or marriage ceremony at all. It will not be denied but that the admissions and confessions of a defendant in a polygamy or bigamy case can be used and go to the jury for what they are worth. It is conceded by the able counsel in his argument in this case that if the admissions were precise declarations describing a time, a place, and a ceremony, that this would then become evidence of that ceremony. At the same time counsel insists that mere statements by defendant that these two women were his wives utterly fails to make such a case as
The importance of these cases has caused me to add this much to what has been written by my associate. The orders and judgment of the court below are affirmed.
