Show THE DECISION SUPREME COURT OP OF THE ME UNITED TED STATES no 1527 october term 1888 Ex parte tn the matter of hans nielsen appellant appeal from the first judicial district court of the territory of I 1 I 1 utah argued argue d april 18 1889 decided may 8 89 mr justice Just ilae bradley delivered the opinion of the court this is an appeal from a final order of the district court for the first judicial district of the territory of utah refusing to issue a habeas corpus applied for by the petitioner tit ioner loner who prayed to be discharged from custody and imprison ment on a judgment rendered by said court on the day of march 1889 the judgment was that the petitioner hans nielsen having been convicted of the crime of adultery be imprisoned in the penitentiary tent iary for the term of days the appeal to this court is given by section 1909 of the revised statutes the ease case arose upon the statutes enacted by congress for the suppression or of polygamy in utah the ad section of the act approved march entitled an act to amend section fifty three hundred and aad fifty two of the revised statutes of tote united states in reference to bi bigamy garny and for other purposes reads as follows sec 3 that if any male person in a territory or other place over which tile the united states have exclusive jurisdiction hereafter cohabits with more than one woman he shall be deemed guilty of a misdemeanor and on conviction theire thereof of shall be punished by a fine of not more than three hundred dollars or by imprisonment for not more than six aix months or by both said punishments in the discretion of the court 22 stat 31 the ai section of the act of march 8 1887 entitled an act to amend an act entitled an act to amend section fifty three hundred and fifty two of the revised statutes of the united states in reference to bi bigamy and for other purposes reads as follows inoc sec 3 that whoever commits adultery shall bw b punished by imprisonment in the penitentiary not exa exceeding three years and when the act is committed between a married woman and a man who is unmarried both parties to such act shall be deemed guilty of adultery and when such act is committed between a married man and a woman who is unmarried the man shall be deemed guilty of adultery 24 stat on the of september 1888 two indictments were weft found against the petitioner nielsen in the district courts ane under each of these statutes the first charged that on the of october 1885 and continuously from that time till the of may 1888 in the district aforesaid he the said nielsen did unlawfully claim live and cohabit with more than one woman as his wives to wit with ann lavinia nielsen and caroline nielsen to this indictment on being arraigned nielsen on the of september 1888 pleaded pleaded guilty and on the of november following he was sentenced to be I 1 imprisoned in the penitentiary tent iary for t the e term of three months and to ta pay a fine of and the costs the second indictment charged that said nielsen on the of may 1888 in the same district did unlawfully and feloniously commit adultery with one caroline nielsen he being a married man and having a lawful wife and not being married to said caroline being arraigned on this indictment on the of september 1888 after having pleaded guilty to the other nielsen pleaded not guilty and that he hal had already been convicted of the offense charged in this indictment by his plea of guilty to the other after he had suffered the penalty imposed by the sentence for unlawful cohabitation the indictment for adultery came on for trial and the petitioner by leave of the court entered orally a more formal plea of former conviction in which he set up the said indictment for unlawful cohabitation his plea of guilty thereto and his sentence upon said plea and claimed that the charge of unlawful cohabitation though formally made only for the period from october 1885 to may 1888 yet in law covered the entire period from october 1885 to the time of finding the indictment september 1888 and thus embraced the time within which the crime of adultery was charged to have been committed and he e averred that Carohne the nielsen with whom he was charged to have unlawfully cohabited as a wife was the same person with whom he was noo no charged to have committed adultery that the unlawful cohabitation charged in the first indictment continued without intermission to the date of finding finding that indictment and that the 0 offense charged in both indictments was one and the same offense and not divisible and that he had suffered the full penalty prescribed to this plea the district attorney demurred the court sustained the demurrer and the petitioner being convicted on the plea of not guilty was sentenced to be imprisoned in the penitentiary for the term of days the sentence was as follows to wit the defendant with his counsel came into court defendant was then asked if he had any legal cause to show why judgment should not now be pronounced against him to which he replied that he haj hai none and no sufficient cause being shown or appearing to the court thereupon the court rendered its julg judgment ment that whereas said defendant hans nielsen having been duly convicted in this court of the crime of adultery it is therefore ordered adjudged ed and decreed that the said hanav hans nielsen be imprisoned in the penitentiary of the territory Terri territory tor of utah at the county of salt take lake for the term of one hundred and twenty five days you said defendant hans nielsen are rendered into the custody of the united states marshal for the territory of utah to be by him delivered into the custody of the warden or other proper officer office of said penitentiary yoshid ven Yo 0 busaid said warden or other proper officer of said penitentiary are hereby commanded to recel receive ve of and from said united state marshal him the said hans nielsen Nie laen convicted and sentenced as aforesaid and him the said hans nielsen to safely keep and imprison in sod said penitentiary for the term as in this judgment ordered and specified thereupon being delivered into the custody of the marshal the defendant below on the next day or day following during the samo same term of the court presented to the court his petition for a habeas corpus setting forth the indictments proceedings and judgments in both vases oases and his suffering of the sentence on the first indictments indictment and claiming that the court ha hai i no jurisdiction to pass judgment against him upon more than one of the indictments and that he was beant punished twice for one and the th same offense As before stated the court being of opinion that if taw tte writ were granted he could not be di discharge 1 from custody refused his application that ojzer order is at appealed baled from the f first rat question w be considered therefore is whether if the petitioners petition ers petition was trusi that lie he had been convicted twice for the same offense and that the court erred in its det decision ision he could have relief by habeas corpus the objection to the remedy of habeas corpus of course would be that there was in force a regular judgment of conviction which could not be questioned collaterally collate as it would have to be on habe habo corpus but there tre ire exceptions to this rule which have more than once been acted upon by this court it is firmly established that il if the tf court which renders a judgment has jurisdiction not to render it either 3 because the proceedings or the law under which they are taked are unconstitutional or for any other reason the judgment is void and may be c questioned collaterally an and a defendant who is imprisoned under and by virtue of it may be discharged from custody on corpus this was waa so decided in the ewes cases of ax parte parle lange 18 walls wal and az parte steroid U V 8 and in several other cases rb referred to therein in the case of W 10 re snow U V S we held that only indictment aud and cott conviction 7 of the crime of bulaw I 1 cohabitation under the act of 1882 could be had for the time preceding the finding of the indictment because I 1 the crime was a continuous one and was but a single crime until prosecuted that a second conviction and punishment of the saiad crime for any part of said p was an excess of auth authority gritl on the part of the district court of U rutn and that a habeas corpus wo wow lie for the discharge of the defendant imprisoned on such conw tion in that case the habeas car pus was applied for at a term subsequent to that at which the judg judgment meAt was rendered but we did pat not regard this circumstance as sum sufficient clent to prevent the prisoner from having his remedy by that writ it is true that in the case of snow we laid emphasis on the fact that wa double conviction for the same 0 or f bense appe appeared gred on the face of abe to judgment but if it appears in mhd w indictment or anywhere else in w tb record of which the judgment 10 only a part it is sufficient in the be present present case it appeared on the ree rec ord in the plea of outre autre foia f da convict ivelich aich was admitted to be true by the roe demurrer of the government w ve think that this was sufficient it 11 was laid down by this court in jan re joy coy U US S that the we power of con congress ress to pass a statute acute under cief which a prisoner is held eld in custody may be inquired into HO under a writ of habeas corpus as affecting the jurisdiction of the court which ordered his imprisonment and the court speaking by mr M austice justice miller adds arid and if their want of power appears on the ia of the record of his condemns 1012 on whether in the indictment or elsewhere the court which has authority to issue the writ is bound to ro release him I 1 referring to ex parte Ble bold old U US S in ila the present case it Is true the ground for the habeas corpus was ot the invalidity of an act of con gleas under which the defendant was as indicted but a second on and trial for the same sam e otense lense of contrary to an express provision of the roe constitution in other words a constitutional immunity of the defendant efen dant was violated by the see sec olad nd trial and judgment it is difficult t to see why a conviction and punishment unish ment under an boal law is more of aper a per adias Ws constitutional rights than an 1111 constitutional conviction and punishment under a valid law in the roe first case it is true the court 1148 s no authority to take cognizance of 01 the base but in the other it has no 30 author authority ft to render judgment against the defendant defendant this case aae of ex parte lange where the court urt had authority to hear mille une the case but we held that it had 0 o authority to give the judgment it did id it was the same in the case or of snow the court had authority over ver the case bul bu we held that it land sd no authority to give judgment the prisoner he was waa projected toted by a constitutional brov provision sion curing to him a fundamental right it was not a case of mere error in law w but a case of denying to a person a 4 constitutional right and here such a case appears on the boord I 1 the party is entitled to be aw barged har ged from imprisonment the he distinction between the case of 4 mere inere error in law and of one which the judgment is void is punted out in ex parte siebold old u 8 and is illustrated by the roe case of ex parte parks as com ared ed with the cases of lange and enow ow in the case of parks there absan 4 an alleged misconstruction of a we held that to be a mere borror in law the court having jurls juris diction of the case in the cases of lange and snow there was a denial or 4 invasion sion of a constitutional right party is entitled to a habeas corp PW al 81 not merel merely where the court is without jurisdiction of the cause but out where it has no constitutional dhority or power to condemn the abert prisoner rI ner As said by chief baron auert lu ert in a passage quoted in ex atle ge parks park 9 93 3 U S 18 22 if the roe commitment law be against as k inri made by bv one who had no action of the cause or of for a artter ater for which by law no man ought to he be punished the court are to discharge this was said in reference to cases which had gone to conviction and sentence ce lord hale laid down the same doctrine in almost the same words 2 hales hale Is H P C and why should not such a rule prevail in iii favored hber tati if we tave have seemed to hold the contrary in any case it has been from inadvertence ver tence the law could hardly be stated with more categorical accuracy than it is in the opening sentence of ex parte wilson 17 8 where mr justice gray speaking for the court said it is well settled by a series of decisions that this court having no jurisdiction of criminal cases by writ of error or appeal cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case unless the sentence exceeds the jurisdiction of that court or there is no authority to hold him under the sentence this proposition it is true relates to the power of this court to discharge on habeas corpus persons sentenced by the circuit and district courts but with regard to the power of d dis Is charging on habeas corpus it is generally true that after conviction and sentence the writ only lies when the sentence exceeds the jurisdiction of the court or there is no authority to hold the defendant under it in the present case the sentence given was beyond the jurisdiction of the court because it was against an express provision of the constitution which bounds and limits all jurisdiction being of opinion therefore that habeas habba 8 corpus was a proper rei remedy neoly for forthe the petitioner if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished that question is now to be considered we will revert for a moment to the case of in re snow three crimes of unlawful cohabitation were charged against snow in three indictments the crimes being laid continuous with each other one during the year 1883 one during 1884 and one during 1886 1885 we I 1 held that they constituted but a single crime in the present case there ware were two indictments one for unlawful cohabitation with two women down to may 1888 and the other for adul adultery tery with one of the women the following day may 14 1888 if the unlawful cohabitation continued after the of may and if the adultery was only a part of and incident to it then an indictment for the adultery more admissible after conviction of the unlawful cohabitation than a second indictment for unlawful cohabitation would have been and for the very good reason that ehte tl first indictment in covered all continuous unlawful cohabitation down to the time it was found the case would then be exactly the same as that of in re snow by way of illustrating stra the argument we quote from the opinion in the case mr justice blatchford delivering the opinion of the court said the offense of cohabitation in the sense of this statute is committed if there is isa a living or dwelling together as husband and wife it is inherently a continuous offense flanse of having duration and not an offense consisting of an isolated act that it was intended in that sense in these indictments is shown by the fact that in each the charge laid is that the defendant did on the jay day named and thereafter and continuously for the time specified live and cohabit with more than one woman to wit with the seven women named and during all the period aforesaid did unlawfully claim live and cohabit with all of said women as his wives 5 thus in each indictment the offense is laid as a continuous one and a single angle one for all the time covered by the indictment and taking the |