Show SUPREME COURT UNITED STATES NO 1282 1886 10 lo I 1 A aird eal from D ta the e ter ef of lorenzo tc court ta t salt snow V 1 tt f eake Appe appellant appehans ai hant lake county terri tern epry of t february ath 1887 mr justice blatchford delivered the opinion of the court coort section 3 of the act of congress approved r oved march 1882 chap 47 22 tat 81 31 provides as follows see sec 3 that it if any male person in a territory or other place over which the united states have exclusive jurisdiction hereafter ter cohabits with more than one woman hejhall tie shall be 66 deemed guilty of a misdemeanor and on conviction thereof sh allbe punished by a fine of not more than three hundred dollars or 01 by imprisonment for not more than six months or by both said baid punish ments in the discretion of the court the grand jury of the united states for november term teim IM 1885 in the district court of the tetra judicial district in and for aibe he territory of utah on the ath of december 1885 presented and filed in chat hat court G in open court three several indictments in the namai nam of the united states against lorenzo snow each of them found december ad 1885 designated as no no aldno and no each of them was f founded un Redon on the forego ioK statute and they were were alike in all 41 respects except that each covered ad a dlf if lerent period of time no alleged allege that snow on the list of january 1883 at the county of box elder bider in the said bisti district act Terri territory tod aforesaid and within the jurisdiction of this his court and and on divers ethek days and times thereafter and continuously between said first day of Jar january luary A D the lay day of Deci december niber P AD A D 1883 did then and there unlawfully live and ana cohabit with more than one woman to wit with adeline srah sarah snow harriet S Snow ele Eleanor nor snow mary H snow ate W snow and monie minni a jensen snow and during all the period aforesaid atthe at the county aforesaid he the said old did a unlawfully I 1 W f ally claim live and cohabit wit all of said women as his wives 11 N no alleged that snow on the ut of january 1885 and oh oft divers other days and an ti times ais thereafter and continuously between said first day of badua january A D 1885 and the first day of december A D 1885 1886 did then hen and there unlawfully f live and co cohabit obit with more than ihan one woman to with the seven persons above named and d during all the period aforesaid nd did unlawfully claim live and 44 cohabit with ill all of said women as his wives so no alleged that snow on the lat of january 1884 I 1 land and on divers other days and times thereafter and continuously between said first day et ef january A IJ 1884 and the thirty first day of december A D 1884 did then ana there unlawfully live and cohabit with more than one woman cowit with the seven persons above named land and during all the period aforesaid 6 did unlawfully claim live and cohabit with all of WA said women as his wives at the time of filing eaph each indictment it was properly endorsed a true bill etc sandwith and with the names ames j of the witnesses 11 the same sixteen witnesses were examined before the th grand jury on one oath and one examination as to the alleged offense during the entire time mentioned in alt all of said three indictments and they were found upon the testimony of witnesses given on an examination covering the whole time specified in said three indictments anthe on the alth of december 1880 the defendant was arraigned on each of the three indictments and interposed ter posed a demurrer to each each which being overruled he pleaded not guilty to each indictment no 74 15 vs first tried covering the period from froia and including january list IM 1886 to te december dimic er list I 1 on the slat lot of december 1885 a verdict of guilty waa rendered and a 0 the a court fixed the loth of january 1 1886 as the time for pai passing ising sentence sen teace fice indictment no was next tried cover covering ng t the a period erio from rom an and including nel in january andary ast 1st I 1 december 1 1884 4 the bed bendan orally put in an additional plea in b bar 1 setting up his bis prior conviction on indictment no na I 1 42 and that the offence offense charged in all of the was one coating ous offence offense and the same of fence and not divisible on an oral demurrer to this plea the demurrer wea was su sustained on the triulby trial by the jury a verat verdict c of guilty was rendered on OB the ath of jan aar uary 1886 and the court fixed tae of january january 1866 1886 as the time for passing sentence i I 1 Indict indictment reent no was next tried covering the period from and including january ast 1st december 1888 the defendant orally put in an additional plea in bar setting up his bis prior convictions on indictments iros nos and hod that the offence offense charged in all of the indictments was one continuous of fence and the same saine of fence and not divisible on an orial oral demurrer to this plea toe the demurrer was sustained on the trial by the jury a 4 verdict of guilty was reno rendered ered on I 1 the uh of january 1886 and the court rt fixed the ibe ot of january 1886 as the timp time for passing sentence 2 the record of of the court states thao that on n the last named day the following proceedings took place la in open court I 1 I 1 title of court and d cause the defendant and his counsel F S richards and 0 C richards eayrs of counsel came into court the defendant was duly informed of the nature of the indictments found against him on the ath day of december r 1885 by the grand jury of this court for the crime of unlawful cohabitation committed as stated la in said indictments and during the time as follows viz indictment no between the first day of january AD A D 1883 and the thirty first day of december A D 1883 indictment no between the first day of january A D 1885 and the first day of december A D 1885 indictment no between the first day of january A D 1884 and the thirty first day of december A D 1884 of his arraignment and plea of no not t guilty as charged in said three indictments on the sixteenth day clay of december A D 1885 of his trial and the verdicts of the juries indictment no i ag guilty u t it as s charged in the indictment men t 1 on december e bember 31 1885 indictment no guilty as charged in the indictment 1 on january 5 1886 indictment no guilty as charged in the indictment on january 1886 the said defendant was then asked if he be had bad any legal cause to show why judgment should not be pronounced against him to which he be replied that chehad he had none and no sufficient cause being shown show or court thereupon the court renders its judgment that whereas said lorenzo snow having been duly convicted in this court of the crime of unlawful ua cohabitation it Is ordered adjudged aud and decreed that said Loret lorenza ize snow be imprisoned pin in the penitentiary of ibe territory of utah for a period of six months and do forfeit and pay to the united states a fine of three hundred dollars and the costs coats of this and that he be do stand com bitted into the custody of the U S marshal of said territory until such ane and costs be paid in f fall ull As to indict indictment meat no and it Is liiro further ar ordered adjudged and decreed that atthe at the of J the sentence judgment and ment rendered od on said indictment no 0 41 said lorenzo snow b be eitalo in the penitentiary of utah territory for a period of six months and that he do forfeit and pay to the cited united states the s am sum of three hundred dollars and the costs of this prosecution plo elution ec ution and that he do stand committed committe dinto into the custody of the U a marshal for said territory until such floe fine and costs be paid aid in full AS to indictment no A and 4 d it is further ordered adjudged and decreed decreed that at the expiration of the sentence and lodgment judgment as last above rendered on saw indictment so no said lorenzo snow be im prisoner in the penitentiary of utah territory for a period of six robirt months ht and that he do forfeit and pay to the united states the sum of three hundred dollars and the costs ot of this prosecution and that he be do stand committed into the cus custody of the U S marshal marsha lor for sid said territory until seok flue fine and abd costs be paid in f full all As to indictment no 1 the said defendant larenzo Ip renzo snow is remanded into the custody of the united states marshal fox for utah territory to be by him delivered into the custody of the warden or other proper officer in in charge of bald baid penitentiary and said warden arother or other proper officer of said penitentiary commanded to te receive of and from the said united states tates marsdal ma mar rafial him the said lorenzo snow co convicted and sentenced as aforesaid and him the said lurenzo lorenzo snow keep and imprison an m said penitentiary forthe periods as in this judgment ordered and specified W POWERS judge jude on the of october 1886 the defendant filed in the district court of the third judicial district of the territory of utah a petition setting forth that he be is ik a prisoner confined in the penitentiary of the Terri territory torT of utah by virtue of the warrant judgment and proceedings of record including three indictment indict meaU against y your on r petitioner a t his hid arraignment the thereon rea n and d pleas legg thereto respectively as w well el as demurrers to such pleas decisions thereof and ver verdicts diets of the tary jury being the record of said matters la in the district court of the arst judicial district of the territory of utah 11 copies of all which papers sixteen in number number were annexed to the he petition that undersold under said sold judgment and in execution thereof he had been imprisoned in said penitentiary tor more than claf months to wit con continuously timbo since the abe eth 1 in satisfaction of the fine adjudged ju aged against him and all the costs a warded awarded and assessed falast him on said prosecution 11 that his imprisonment is illegal 1 in that the court had no jurisdiction to pass judgment against him upon more then than one of the indictments or records referred to in its said judgment for the reason that the offense offence therein set out is the same as that contained and set out in each of the other said indictments and records and the maximum punishment which the court bad sti authority thorit y to impose was wai six months I 1 imprisonment n Ason ment and a fine of three aundre hundred X dollars and that by his said imprisonment your petitioner is being punished twice lor for one and the same of fence the prayer is for a writ of habeas corpus to the end that the petitioner may be discharged tron custody oa a hearing oia OB the petition the fel order was made by the court on ola the of 0 october 1886 petition of lorenzo snow tor for a SS voi of habeas corpus having been exits presented resented to the court with the exhibits attached as a part thereof and the court having fully considered the application estion and petition and the exhibits attached finds that the facts alleged and shown by the petition and exhibits are insufficient to authorize the issuance of the writ and the court being of the opinion from the allegations ana facts stated inage petition siad and exhibits that it if the writ be and a hearing given the petitioner could not be discharged from custody it is ordered and ada adjudged budged by the court that the said application for a writ of habeas corpus be and the same is hereby cef used to which ruling and ref refusal u applicant by his bis counsel excepts except a from this order and judgment the has to this court there can be no doubt that the action of the district court as set forth iu in its order and judgment refusing to issue asae the writ was so far as an appeal is concerned equivalent to a ref refusal asal to discharge the petitioner on a hearing on the return to a writ and that under 1909 ot of the revised statutes an appeal pea lies to this court from that order and td judgment it is cont contended for the united states that as the court which tried the indictments bad jurisdiction over the Of fences charged in them it had jurisdiction to determine the questions raised by the demurrers to the oral pleas in bar in the cases secondly and th thirdly ardly tried that it tried those questions ti 0 that those questions are the same which are raised in the present proceeding that they cannot be reviewed v tew ed an habeas corpus carpus by any court A and ct th that av they could only be re ex here on a error if one oae were authorized for these propositions the case of ea ef parts bigelow U S is ci cifer but tor for the reasons hereafter stated we are of opinion that the decision in that ahat cue case doe snot et apply to the present one 1 the offence offense of cohabiting with more one in section of the statute on which tie the indictments P were bounded loun ded may be committed by a man by living in the same bouse with two women whom be had theretofore acknowledged as his bis wives and eating at their respective tables and holding them out to the world by his language ov 0 conduct or both ai as his bis wives though he may not occupy the same bed bad or sleep in the same room with them or either of them or haw have sexual intercourse with either of them the offense of cohabitation in the sense of this statute is commuted m if there Is a livin living ox or dwelling together as husband ang and wife it is 18 inherently a continuous offense having having du duration ratton and not an offense an isolated act that it was intended enthat in that sense in these indictments is shown by the fact that in an each the charge laid is that the defendant did on that day named and thereafter and continuously 10 for the time specified live and cohabit with more than one woman to wit with the seven women women named and during all the period aforesaid did unlawfully claim live and cohabit with all of said women as his wives thais in each indictor indictment abent the offense is laid as a continuing one and a single one lor for all the time covered by the indictment wad and taking the three indictments to gether there to is charged a continuing offence offense tw the entire time ioime covered by all three of the indictments there maere was but a single offence offense committed prior to the time the indictments were found this appears on the face osithe judgment it refers to the indictments as found ifor tor the crime of unlawful cohabitation committed during the timet time stated divided into three periods according to each indictment for so much of odthe the offence offense as covered each of these periods the defendant is according to the judgment to be imprisoned for six months and to pay a line fine of the two years aud and eleven months is wholly arbitrary bit on the dame principle there might have been an indictment indict pent covering each of the thirty five month imprisonment for seventeen years and a half and flues fines amounting to or even an indictment covering levery every week with imprisonment for seventy four yours and fines amounting to ana and so on ad aa infinitum for smaller ler periods of time it t is to prevent such an application of penal law stoat t the rule rale has obtained that 06 cont muing offence offense of the character of the one in this case cati can be committed but once tor lor the purpose of indict indictment mentor or prosecution CutI prior to the time the prosecution is instituted here each indictment charged unlawful cohabitation with the same seven women all the indictments were found at the same tune 01 by the same grand jury ury and on the tes testimony I 1 it nony of the same witnesses covering vering ed a contin continuous period of thirty live five months |