Show SUPREME COURT at the cession ot of the territorial court febra february ary 19 judge anderson read the following 0 in ton on in the ewe case of the united ak gee vs va byron W brown the defendant was convicted in 6 first district courtat court at provo of acty committed in violation of ailon on of the revised statutes ot 01 the e united states the perjury perjur arged alleged to have been committed commit committed tei e the defendant was being ex his dined on hta voir ahre to determine competency to serve erve as a grand autor ju the first district Oi IM strict court at ma he was waa examined as to suck under see 5 of the t of congress of march 22 47 22 statute 81 being see sec of wai what i te known knowd as the edmunds uw and Ud that while being so exam exair he testified tes tined that he did not be eai ve it right for a man to have more than one living and at the same mine time and that he not believe it right for a man to SS III the practice of cohabiting thai ti jre wore than one woman and he e did not believe in polygamy a lh phamy of wives I 1 this his h y Is alleged to be false and the of it per perjury jury after the ver trial fondant fen dant moved for a new 4 SS the ground that the evi oe Is to support the the reorder order was denie I 1 and dar appeals from the or abing rabe delving aying the motion d tafoi question presented is adlet di jhb 6 evidence eTi dence warrant the ver T amsl in the tow aae of the united ww 19 pac rep where the same same question was presented this court stated elated the principle which should govern as follows the jury ury are the judges of the facts and in order to justify the court in reversing an order refusing a new trial it must appear that there was an entire absence of evidence or that the evidence so clearly preponderates ates in favor of the prisoner as to suggest the possibility that the verdict was the result of misapprehension or part partiality laHty it is not enough that the court might have arrived at a different result we are satisfied with the rule just stated and it only remains to test the case at the bar by it it is not contended but that the evidence was waa sufficient to establish the fact that the defendant testified as charged in the indictment but the claim is made 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 1 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 more than one woman at the same time and to live in the practice of cohabiting with more than than one woman whereupon he was sworn and examined and in an examination which covers several pages and in which the court and I 1 counsel for the government both participated he repeatedly testified that he did not believe it to be right that he bell believed eved it to be wrong both legally and morally and that he did not believe in polygamy the questions were repeated to him many mamy times over and in various forms and the same answer repeated to show the falsity of the testimony evidence was given that the defendant a short time before his examination had advocated the doctrine of polygamy and averred his belief that it was right also that he was and for many years had been a member of the mormon church being a seventy ay that the duty of a seventy was to teach and preach the doctrines of the church that he had lately returned from a mission that polygamy and its practice is one of the acknowledged doctrines of the church and and a number of witnesses testified that after he had given the testimony complained of and it had become known and he was questioned as to why he so testified he explained that he knew new it was right it was not a matter of mere belief but it was absolute knowledge with him that it was right then followed the testimony of witnesses who testified as to statements made to them by the defendant to that effect it will be seen by c this statement of the testimony that evidence was given showing that defendant asserted a belief contrary to his testimony and in accord with the doo doe trine of the w organization of which he was an active member a short time before his testimony was given and that when he was approached approach ea reprovingly by members of his church and others for giving the testimony as he did be asserted a belief contrary to his testimony and undertook to explain that it was past belief and was actual knowledge it is unnecessary tor for us to consider this claim for he testified that he believed it was wrong and the jury was wa B justified in finding ending 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 san of an oath and the other 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 statements made out of court and before he was examined and that the statements made by him afterwards Js were in the nature of confessions if this claim of the defendant fondant is correct then it would be impossible to show that the testimony is untrue unless he had actually been guilty of polygamy or unlawful cohabitation and such persons are disqualified from acting as jurors by other provisions of the stat ute than those above quoted but the statute goes beyond this ana ana dis qualifies persons having a certain belief and authorizes the court to make inquiries under oath of persons presented or proposed as jurors as to their belief if the testimony given in this caw case does not fairly tend to show that the testimony given is false it is hard to conceive how it could be shown and the statute would have no foroe force whatever the case was fairly and carefully given a to the jury jur by the learned E u d e who pread presided ed e at the trial in d e ae no complaint is made of any misconstruction fon or ruling and the order appealed from should be affirmed and the cause remanded we concur SANDFORD ch J BORE mAX justice in the case of john watson appellant vs george LC orey respondent on petition for rehearing badge jauge boreman delivered the opinion of the court which is as follows this case was decided at the present term of this court and the appellant has applied for a rehearing the plaintiff states in his petition for a rehearing that this court in the decision rendered failed to pass upon the main question submitted but based the decision upon a question which was not involved in the controversy except incidentally if this be true the counsel were derelict in their dut duty and are to blame for any supposed oversight on the part of the court c 0 u A the oversight if any existed e d was on the part of counsel co and not of the court the case presented was decided the whole argument of counsel was devoted to an effort to show certain sec eions of the territorial statute of 1888 in regard to the incorporation of cities gave the city council of ogden city the power to provide lovide by ordinance for the registering registering and voting in wards the court held that those sections did not apply to 0 ogden den city in the petition tion for a re rehearing Tearing it is now claimed that the power to pass such an ordinance by the city council was obtained from the old charter of the city and from the general election law 0 of the territory and not from the territorial statute of 1888 referred to had counsel made this statement to the court when the case was called for argument it would have saved hours of argument it would have saved much trouble and time to the court and it would have enabled the counsel to have omitted twenty eight pages of the plaintiffs brief it does not appear that the question now sought to be raised was referred to in the lower court in the oral argument in this court no stress whatever was laid upon it and according to our recollection no reference to the point was made in the plaintiff plaintiffs Is brief a document of thirty pages tie iche point was not noticed until near the close within two pages 1 es of the end the whole arve brief ef except those two pages was devoted to the question decided by the court and that was treated by counsel aalthe all the way through the case as the main if not the only point in it when a case is presented to the court wholly upon one theory and every other point is omitted from the argument or of counsel the court is never disposed to notice a reference by the printed printed brief to some other point the he rule is that if counsel omit to notice a point the court will likewise omit to notice it A party must have his ewe case presented as he desires it to be heard it cannot be presented upon one theory and when that fails then be presented upon a Jiff lif erent ferent theory and one to which the courts courna attention was not called if a party have what he deems an important point he should present it at the appropriate time this court will not near hear a ewe case by piecemeal piece meal nor consider an any y point not presented in the argument the plaintiff in his petition has shown no grounds for fora a rehearing and the prayer is therefore denied we concur 40 SANDFORD ch J JUDD justice I 1 THE territorial SCRIP CASES in the case of the people ex rel lewis P kelsey respondent vs george D py r court commissioner appellant altu judge dge henderson delivered the opinion of th the court the plaintiff commenced proceedings in the third district court for a mandamus against the defendant to obtain payment of due from the territory for fees as a witness on the part of the people in a criminal case an alternative writ was issued averring that on the day of february 1888 the clerk of the district court issued and delivered to J D stevenson a certificate showing that he had served as a witness for the th p people eople in a criminal case and that he was entitled to stevenson assigned the certificate to the plaintiff who demanded payment from the defendant which was re refused fusel the cause came on for trial on december 1888 and the issues were found by the court in favor of the plaintiff and a final judgment entered awarding a peremptory writ with costs from this judgment the defendant appealed and raised the question that there is no allegation in the writ that the defendant has funds in his hands with which to make payment and that the certificate is defective in form and that therefore no cause of action is alleged these questions axe are discussed at great length in the opinion which says in conclusion it is a matter of which this court will take judicial knowledge and it is apparent from past legislation that prior bior to the acts in question there gas has never been any provision for paying witnesses and jurors as the services were rendered but that each legislature has made appropriations to pay the amoun amount of outstanding certificates as ascertained by a committee of the legislature we think it is apparent from this legislation that the legislature having provided forthe for the payment of all outstanding obligations of this kind up to january 1 1888 intended to provide for the payment ot of all these certificates for which the territory was liable after that date and commit their payment to these commissioners who should be located near the several courts and coul i make proper inquiry concerning them but services rendered after january 1 1888 and before the passage of these acts should be paid according to the law then in force and that the judgment of the court below in this respect was right the court below gave e judgment against the defendant for costs this we think was wrong there Ther ewas was no finding that thede the defendant was acting in bad faith and restating resisting the payment and it is contrary to section compiled laws of 1888 which is but an affirmation fir of the common law principle applicable to officers acting in good fat faith ar and for the preservation of a fund in their hands bands A judgment should be entered in this court remanding the case to the court below with instructions to modify the judgment appealed from so as to provide for payment and costs butof out of the fund in the defendants defendant Is hands as commissioner neither party should recover costs in this court Justices Judd and foreman boreman concur concu r THE bredemeyer APPEAL in the case of the united states vs william bredemeyer who was tried before judge zane in the third district court and convicted of adultery judge sandford delivered the opinion after outlining the facts in the case the decision states that a request by the prisoners counsel to the court to instruct the jury to acquit on the ground that the testimony of the accomplice was not corroborated was refused and an exception taken the refusal was taken on the ground thattie that the territorial statute relating to the testimony of f an accomplice was ina li I 1 in in this case in which tp the e united states was the plaintiff it is provided in the penal code of the territory that conviction cannot be had on the testimony of an accomplice unless he is 18 corroborated by other evidence which in itself and without the aid of the testimony of the accomplice i tends to connect the defendant with the commission of the offense the refusal of the learned judge ws was therefore error if this statute be found applicable to a criminal case in which the united states is a party we are of the opinion that the territorial enactment just cited is applicable to this ewe case it has been many times decided that the statutes passed b by the territorial legislature regulating the trial of offenses against the united states are not invalid while the territorial laws may not no override any act of congress covering the subject matter territorial laws control it was also an error to refuse to allow the defendant to show the bad cha character of the orl who testified against him this evidence would if received havo have necessarily affected her credi credibility bill the evidence of the deafen defendant guilt was vague unsatisfactory a and insufficient to sustain the verdi verdict on account of the errors above referred to without considering the other points raised on the agirs appeal we are of the opinion that th there should be a new trial the j judgment edg of the court below is rev reversed and the case remanded for a now nev trial justices judd and boreman concur when the territorial supreme court opened feb 21 there was a 6 large attendance of members bembe ra of the bar and spectators many of whom were doubtless drawn there to see me the outcome of the report of Exa examiner miuOr harkness on the zane dyer contro versy the chief justice and the 00 three associate justices were p present the district court having been adjourned till saturday 1 I N kimata hambek asked an order of court in the case of the mccord c nave mercantile company compan va 8 f glen in regard to costs taken under advisement in the suit of augustus N eddy BOY vs elwin A ireland judge bore man rendered the opinion of toe court sustaining the action of tae abet thira third district court judge judd gave an oral opinion as the decision of the court in n tho te suit of matilda openshaw et al VV the utah nevada railway gob COW pany in this case the jury ga mrs Opens openshaw baw and her child damages for the killing of her bu band on the railway the of the lower court in refusing a now new trial was sustained judge judd aw f marking that it was doubtful or not the verdict should have been for double the amount awarded mr williams as attorney |