7 Utah 437 | Utah | 1891
The defendant was indicted for two offenses, to-wit, bigamy and adultery, in one indictment in two counts. He did not demur to the indictment. He was convicted On both and sentenced on both charges. He appeals from the judgment, and assigns for error:
1. The uniting of two offenses in one indictment. This is untenable if the Territorial statute is applicable. It provides that this defect, if any, in the indictment must, be taken advantage of by demurrer. 2 Comp. Laws Utah, § 4972, subd. 3. If the Territorial statute is inapplicable, this indictment would be good under section 1024, Rev. St. U. S. It is good at common law. The prosecutor could nolle one count and proceed under the other, or the court could compel him to elect which count he would proceed under. Whart. Crim. Pl. § 290; U. S. v. Nye, 4 Fed. Rep. 888.
2. The court erred in receiving and entering a verdict on both counts of the indictment. The proceedings at the trial are not preserved by a bill of exceptions, nor was a motion made for a new trial or in arrest of judgment, so that the errors at the trial, if any, cannot be reviewed by the appellate court. We only infer from the verdict that the appellant wa,s tried on both charges. At common law, a defendant could be convicted on two-distinct felonies at one trial if they were of one general nature, and subject to like punishment, (Carlton v. Com., 5 Mete., Mass., 532,) and several judgments may be
3. The court erred in imposing judgment and sentence upon two crimes and two convictions upon the verdict. This is not error. Authorities as above.
4. That the court erred in splitting up one act so as to constitute two offenses., as appears from the face of the indictment. This contention is based on a false assumption. The indictment contains two counts: (1) For bigamy; (2) for adultery, — both alleged to have been committed on the same day with the same person. What the evidence was at the trial we do not know, for it is not preserved in the record; but it makes no difference, if the two offenses were committed on the same day, and with the same person. The bigamy was completed when the appellant, having a wife, married another in accordance with the forms and ceremonies and provisions of the statutes of the Territory; and we are bound. to presume that the evidence showed this, or the verdict would not have been “G-uilty,” — the evidence not appearing in the record. Sexual intercourse was not necessary to complete the offense. A marriage may be good if the parties never copulate. The crime of bigamy being complete, any sexual intercourse the apellant afterwards had with the woman constituted the crime of adultery, because the marriage was void, and they were to each other as if no marriage ceremony had been performed. This disposes of all the errors claimed in this case, and we see no error in the record.
The judgment is therefore affirmed.