Show THE MILES CASE Supreme Cturt of the United States October Term 18SO 2fb fr John Mile Plaintiff Error vs The United tatea In Error to the Supreme Court of Utah Territory Mr Justice Woods delivered the opinion of the CUlt Section 5352 of th < Revise Statute of the United Siae declares Every perjon having a husband or wife livine who intrrie another whether married or single I in I territory or other place over which the United States has exduivo iursjicton i guilty ofbisiniy and ehill bu punifhd by a fine of not more than five hundred dollars dol-lars and by imprisonment for a term not nor than five yotre The plantifl in error was indicted under this section in the Third Ditrict Court of Utah at Salt Like City He was convicted He appelud to the Supreme Su-preme Curt of the territory where the judgment of the Ditrict Court was affirmed Tbat judgment I now brought to this court for review upon writ of error The indictment charged that the plaintiff plain-tiff in error John Miiw did on October 24 187S at Salt Lake County in the Territory ef Utah marry ono Emily Spencer and that afterward and while he was go married t Emily Spencer and while she was still living did on the came day nnd at the same county marry ono Caroline Owens the said Emily Span er his former wife being still living liv-ing and at that time his legal WIfe Too criminal procedure of Utah is regulated reg-ulated by an act of the Terriorial Legislature Legis-lature passed February 2 1878 iho following are the section pertinent t this case which prescribe the rules tat the empaneling juries Se 211 A particular cause of challenge chal-lenge is hI For such a bias 03 when the existence exist-ence of the facts is aicertained in judgment judg-ment of law disqualifies the juror and which bias is known in this act as implied 2 For the existence of a state of mind on the part of thejurorwhlch leads to a jojt inference in reference to the case that ha will not sct with entire impartiality impartial-ity which is known in this act as actual bus Sec IMG If the facts aw denied the challenge muit be tried ai follow 1 I it ba for implied bias by the court 2 I it be for actual bid Dy triers Sec 247 Th triers tire three impartial impar-tial pereons not on the jury pinel appointed ap-pointed by the court All challenges for actual bias must be tried by three triers thus appointed a majrity of whom may decide jJ hSe 249 Upon the trial of a challenge chal-lenge t an individual juror the juror challenged may be examined as a wit nea t irovo or disprove the challenge and must answer avery question pertinent to no inquiry See 250 Other witnesses may also bo examined on either side and the rules of evidence applicable tj the trial of other issues i govern the admission or exclusion of evidence on the trial of the challenge Se 22 On the trial of a challenge for actual bla whenthe evidence is concluded con-cluded the court must instruct the triers that ills their duty to find the challenge true if in their opinion the evidence warrants the conclusion that the juror has such a bias against the party challenging chal-lenging him as to render him not impartial impar-tial and that I from the evidence they believe him free from such bias they must find the challenge not true that a hypothetical opinion unaccompanied witn malice or illwill founded on hearsay hear-say or information supposed to be true i of iUelf no evidence of bias sufficient to disqualify a juror The court can give no ether instruction Sec 2 The triers must thereupon find the challenge either true or not true and their decision i final 1 they find it true tho juror must be excluded Upon the trial of the case in the District Dis-trict Court of tho tsrriory Oscar Dunn and Robert Patrick wore called BS jurors werechillenged fur actual bias and sworn upon their vos7 dire Tnreetriers were appointed by the court t pats upon the challenges to the Jurors Dunn in nn wer t questions propounded to him testified that he believed polygamy to be right that it VIA ordained of God and that the revelitions cJncern ng it were revelations from God and that those icvclations shuld bu obeyed and that he who acted on them should not bo convicted by the law of tbo laud The juror was challenged by tho prosecution prose-cution or actual his for the exutence of a state II c mind on hiS part which led t I just inference that he would not act w th entire impartiality Tha triers found the challenge true and he juror wee rejected Robert Patrick was examined on hit voir dire and tatified that he believed I that the revo a ion given to Joseph Smith touching polygamy came horn G d ihnt it was ou tf Gods Jaws I to his people and that he who piacticed polygamy con cientiou ly believing that revelation to bo > from God was doing Goda will He also testified that in bir opinion the law of Congress was in conflict with that Uw l of God that Congress had tie right t pas such a law and that on tbo trial ota person who was in t I p ac ice ot polygamy polyg-amy charged with bigamy he would con tder it his duy It aliened by the evidence to find the defendant guilty KuiLy lud that he would do to The juror was challerRed for actual his and tho triers found the challenge true and tho j uror was excused A laree numbr of other jurors were examined and challenged and excused on the tame grounds Upon the trial evidence was given tending to shw tat a short time before the date laid in the indictment October 241878 the p aintf in error was in reaty for marrying at or about theme the-me time three young women namely Emily Spencer Caroline Owens and Julia Spencer nod that there was a die cuisipn between thun in the question which should bi tho firt wife and that upon appeal to John Taylor presIdent of the Mormon Church the plaintiff in error and the three women being present it wa decided by him that Emily Spen cer being the eldest should be theflrst wife Caroline Owens being the next younger the second and Julia Spence being the youngest the third wie SDencer being according to the rules of the church I appeared further that marriages of persons belonging to the Mormon Church usually take place at what is called the Endowment House that the ceremony is performed in secret and the parson who officiates is under a sacred obligation it not to disclose the names of the parties tIt t-It further appeared that on October 24 1878 the plaintiff in error was married mar-ried to the said Caroline Owens and that on the nigh of that day he gave a wedding supper at the hue of one suppr Cannon at which wore present Emily Scorcer Caroline Owens and other Evidence tending t establish these lact I haviog been given to the jury tho court permitted to be given in evidence declarations made hv tha psftif in error on that night in i pr of the assembled sence o company semble and on subsequent occasions t the effect that Emiiy Spencer was his first wife Section 1604 of the Compiled Laws of Utah declares iA husband shall not be a witness for or against his wife nor a wiwa witneisfor or against her bus band bandUpon the trial and after tho evidence above recited bad been given tending as the prosecution claimed to proseuton claime prove the marriage of the plaintiff in error t Emily Spencer justbaforo his marriage to miy line Owen the latter l was offered lne wa ofer aj a witness against him to prove the same fact Thereupon the defendant admitted in open court the charge of the indictment that he had been married t Caroline Owens and even offerod testimony to prove it but this was ruled out by the court Tho defendant therefore objected to the introduction of Carolina Owens intructon Carlne as a witness against him the objection being based on the statute just quoted The court overruled the objection and admitted her as a witness and she gave testimony tending to provo the marriage maiae of the plaintifi in error t Emily Spencer previous t his marriage with the witness It appeared from the evidence that the name of Caroline Owens fathsr was ilaile but that the had been adopted wa by un undo and aunt named Owens and bad taken their name by which she was I caled and known but that when wa she ws baptized in tae ilotmon Church tBe was required toba baptized in her fathers name and was married to Miles under thai name I The court among other things charged the jury as follows Ulf you find from all the facts and circumstances proven in this case andIron crcumtnce defendant from the admissions of the defendant or from either that the defendant defend-ant Miles married Ermjly Spenco and while she was yet living and his wife he married Caroline Owens ai charged in the indictment your verdict should be guilty giy I A legal wife cannot but when it appears ap-pears in a case that the witness i not a pea wife but a bigamous or plural wife then she may testify against the bigamous husband and her testimony with should havejust as much weight the jury as any other witness i the jury believe her statements t b true And her evidence my be taken like the evidence evi-dence ot any ether witness t prove either the first or second marriage And so in this case you are at liberty t consider the testimony of Mist Caroline Owens i you find from all the evidence ui the cue that she is a second and plural wife and give it all the weight you think it entitled to and may use it t prove the first marriage mar-riage alleged towit the marriage of defendant de-fendant and Emily Spencer or any other fact which in your opinion i proven by the testimony if you believe it a you do the testimony of any witness to prove any fact about which she his tettifkd U The prisoners guilt must bo esaV lished beyond roasoaable doubt Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind t a moral certainty that fact exists that u claimed to exit so that you feel certain that it exists A balance proof is not sufficient A juror in a criminal case ought not to condemn unless the evidence excludes from his mind al real mablo doubt unless ho Vo so convinced con-vinced by the evidence no matter what tho class of the evidence of the defendants defend-ants uit that a prudent man would feel tofu t act upon that conviction in matters of the highest concern and im portanco to his own dearest personal interests in-terests tr t The plain tiff in error alleges as ground of error the exclusion from the jury of Oscar Dunn and Robert Patrick and others of the Mormon faith Ho claims that the examination of the proposed prpse jurors and the rulings of the court show thut it was the delibarato purpose of the court t exclude from the jury everyone who WAS of the Mormon faith He insists in-sists that neither the court nor counsel had the right t inquire into the religious belief of the juror There is no complaint that the jury was not a fair and impartial one or thai any juror empaneled was disqualified Whether the exclusion of qualified jurors from the panel is a ground for setting set-ting aside the verdict and judgment on cido error we do not Sad i necessary to de cidoIt is insisted behalf of the defendant in error that the excluded jurors were not qualified tat t sit in the case of the defendant defend-ant in error In empaneling the jury the court was bound t follow the law of the territory on that subject Clinton vs Eaglebrecht 13 Wall 434 United States us Reynolds 58 U S 145 The jurors excluded were objected toby to-by the prosecution as disqualified from serving in the case of the plaintiff in error for actual bias The challenge for actual bias was tried by the triers appointed by the court in accordance with the law of the territory The triers found the challenge true By the same law their decision is declared to be final and thereupon the jurors challenged chal-lenged must ba exclude iba law we carefully followed The jurors were found disqualified and were therefore as required by the law excluded from the panel I is evident from the examination of the jurors on their voir dire that they believed that polygamy was ordained of God and that tho practice of polygamy was obedient to the will of God At common law this would have been ground for principal challenge of jurors of the same faithSee 3 Blackstono 303 I needs no argument to show that a jury composed of men entertaining such a btlet cmpose not have been flee from bios or prejidico on the trial for bigamy of the perton who entertaieed the same belief and whoso offenio consisted con-sisted in the act of living in polygamy But whether the evidence of bias was sufficient or not i was so found by the triers and that was conclusive Whether or not that bias was founded on the religious belief of tbo juror is en tirnly Immaterial if the bias oilled I hal been held br this court that on an indictment for bigamy it was no defence that the doctrines and practice of polygamy polyg-amy were a part of the religion of too accused Reynolds vs United Stale 9 U S14 It could not therefore be on invasion of the constitutional or other rights of the juror called to try a party charged with bigamy t or quire whether he himself was living in polygamy and whether be believed it to be in accordance with tho i divine wM and command I the jurors themselves had no ground of complaint it ii clear the defendant had none We find nothing in the record in relation rela-tion to the empaneling of the jury which would have required the Supreme Court of the territory t set aside the verdict and judgment of the District Court It is next assigned for error that the court admittad the declarations and admissions ad-missions of the plaintiff error to provo the feet of his first and ct hI fr6t marriage the charge of the court that the declarations of the accused were evidence proper to bo considered by the jury as tending to prove an actual arriage and tat such marriage might be proven like any other fact by the admissions of the defendant or by chcumstantial evidence and that it was notnecefeary t prove it by witnesses wit-nesses whe were present at the ceremony cere-mony To hold that on an indictment for bigamy big-amy the first marriage can only be proved by eyewitnesses of tho ceremony is to apply t this offense a rule of evidence evi-dence not applicable to any other The great weight ot authority ii adverse ad-verse t the position of the plmtifl in error In Retina vs Simminsto 1 Car 5c Kir 164 it was held that on an indictment dictment for bigamy the first marriage may be proved by the admissions of the prlonerj and it is for the jury to determine deter-mine whether what be said was an admis ion that he had been legally married according tj the laws of the country where the marriage was solemnized ane name view is sustained by the following fol-lowing cases Regina vs Upton 1 Car Kir 105 note 1 Greav ed of RUB on C M21SJ Duchess of Kingstons Case 20 How State Trials 355 Tin mans Case 1 BasIl C 470 Osyfords Case 7 Orant 57 Hams Case 2 Fair 391 The State vs Hilton 3 Rich 434 The State vs Britton 4 McCord 256 Warner vs Commonwealth 2 Va Cas 595 Norwoods Case 1 Eat P C 470 470 Commonwealth rs Mnrtagh 1 Ashm 272jKegica Newton Moody t R 603 The State vs Libby 44 Maine 469 The State vs McDonald 2 Misso 176 Cameron vs The State 1 Ala 546 Wolverton vs The Hat 16 Ohio 173 Stale us Seal 16 Ind 352 Quin vs State 46 Ind 725 Arnold vs State 5 Ga 574 Brown vs Slate 52 Ala 3 Commonwealth vs Jackson 1 Bush 629 Williams vs State 51 Ala 131 The declarations of the plamtiffm declartions plaintifin error touching his marriage with Emily Seen I cer admitted in evidence against him appear to have been deliberately and repeatedly eatedly made and under such circuin stances a tended t show that they ha reference t a formal marriage contract between tho plaintiff error acd Emily Spencer We are of opinion that the District Court committed no error in admitting such declarations or in its charge to the jury concerning them The charge of tho court defining what is i meant by the phrase reasonable doubt assigned as ground of error The evidence upon which a jury i justified jus-tified In returning a verdict of guilty must b sufficient to produce B conviction of guilt to the exclusion of all reasonable doubt Attempts to explain the term reaionabp doubt do not usually result in making i any clearer to the minds of the jury The language used in this care however was certainly very favorable ve able to tha accused and is t thl acuse ad sustained by respectable authority Commonwealth vs Webster 5 Cash 320 Arnold vs The State Z2IdliO The State 18 Nash 7 Iowa 317 The State vs Ostrander 18 Icwa 435 Donnelly vs The State 2 Dutchsr 60 Winter vs The State 20 Ala 39 Giles vs The Stat 6 Ga 27CJ We think there was no error in the charge of which the plaintiff in error can justly complain Toe plaintiff error next alleges that the description of the woman named in the indictment a the person with whom the crime of bigamy was committed was not sufficiently specific and that on the trial she turned out to D not Caroline Owens but Caroline Male The designation of Carolina Owens a the penon wit whom the second mar riage B contracted i clearly sufficient cent I it were not it i to late after verdict to object As t the fact the juy has found that the person whom the p aintiff in error was clare t have married while his frst wife was living and still his legal wit was Caroline Owens and not Carolina Maile and that question is therefore conclusively settled by the verict This CUlt cannot reexamine re-examine question of fact upon writ of orror fRarised Statutes sec 1011 The plaiDtiQ in error lastly claims that the ciurt erred in allowing Caroline Owens the second wife t give evidence against him touching bfj marriage with itnily Spencer the alleged first wife and in chargine the jury that they might consider con-sider her testimony if they found from all the evidence in the case that she was a second and plural wie 111 asignment of error we think is well founded Tbs law of Utah declares that a husband hus-band snail not be a wuness fr or against his wife nor a wife for or against her husband The marriage of the plointiff error with Caroline Owens ws charged in the indictment and admitted by him upon the trial The fact of his previous marriage mar-riage with Emily Spencer wa therefore the only issue in the case and that was contested to the end oftho trial Until the fact of the marriage Emily Spencer with tho plaintiff in error ws established Carolina Owens was prima facie his wife acd she could no ba used as a witness wit-ness against him use The ground upon which a second wife is admitted as a witness against her husband hus-band in a prosecution for Digamy is that be is shown not t be a real wife by proof of the fact that the accused bad previously married another acuse who was still living and still his lawful wife I is only in cases where the firit marriage mar-riage is not controverted or has been duly GitabiUned by other evidence tht the second wife is allowed to testify and the can then be a witness t the second marriage and not to the first marisle t fut The testimony of the second wife t prove tho only controverted issue in the C8e namely the first marriage cannot be given to the jury on the pretext that its purpose is U establish her competency A ber competency depends ou proof ol the first marriage and thtt is the issue upon which the case turns that issue must be established by other witnesses before the second wife is competent for bny purpose Even then she is not competent com-petent to prove the first marriage for she cannot ba admitted to prove a fact to the jury which must be established before she can testify at all Witnesses who are prima face competent com-petent tut whose competency f disputed dis-puted are allowed to give evidence on their voir dire to the court upon come collateral issue on which their competency compe-tency depends but the testimony of a witness who ispnmaacteincmpetent cannot be given to thejury upon thevory upn issue in the caac in order t eslabih hIs competency and at the same time provo the issue Tbo authorities sustain these views Upon I prosecution for bigamy under the statute of 1 Jac cap 1 it was said by Lord Hale lThe first and true wife U not allowed to be a witness against her husband but I think it clear the fecund may be admitted mitted t prove the second marriage for she is not bit wife contrary t a sudden opinion delivered in July 1GG4 at the Assizes in Surrey in Arthur Armstrongs case for she is i not so much a his wife de factol Hales Pleas of tho CrowD 693So So in Easts Pleas of the Crown the rule is thus laid down The first and true wire cannot bo a witness against her i husband nor vice versa but the second may be admitted t prove the second marriage for the first being proved she is not so much a wife defacto but that must b frt establishedl Easts P C 469 The text of East is supported by the following citation of authorities 1 Hale 693 2 M S Sum 331 Ann Cheneys Case O B May 1730 Sergt Fosters Manuscript In Peaks Evidence Norris 243 it bid b-id I is clearly settled that a woman who was never legally the wife of a man though she has been in fact married to him may be a witness against him e in an indictment for bigamy the firt marriage riage being proved by other witnesses the second wife may be examined to prove the marriage with her for she is not dejure his wife Mr Greenleaf in hs work on evidence volume 3 says If tba fir t marriage is clearly proved and controverted then the person with whom the second mar rirge was had may be admitted a a witneSs wit-neSs to prove the second marriage a well as tu other facts not tending to defeat the first or legalize the second There it is conceived she would not b admitted t proTO a fact snowing that the first marriage wai voidsuch as relationship within the degrees or the like nor that the first wifa was dead at the time of the second marriage nor ought the to ba admitted ad-mitted at all if the first marriago i in Controversy J Tho result of the authorities is that as f lang l as the fact of the first marriage it i cJntt the second wife cannot be admitted ad-mitted to prove it When the first marriage mar-riage is duly established by other evidence evi-dence to the satisfaction of IN court the second may ba admitted to prove the second marriage but not the first and the jury ehou have been EO instructed I In this case the injunction of the law of Utah that tho wife should not be a witnua for or against her husband was practically ignored i by the court Aftur come evidence tending to how the marriage ot plainif ia i error with Emily Spencer but that fct being still in controversy con-troversy Caroline Owens the second wHo WHS put upon the stand and allowed t testify to the first marriage and the jury were in effect told by the court that i from her evidence tnd that of o her witnesses in tie case they were satisfied of tbn fuctnf the first marriage marrage then they might cosider the evidence of Caroline Owens to prove the first mar riiije ri4le In other word the evidence of a wit nes prima facie incompetent and wnusts tnpetrncy could only bush bu-sh > wn by pioof f I fact which was the one intentd issue in the case was al lowed logo t the jury to prove that issue and at the sume lima to establish the com patency of the witness In this wo think the court erred I is made clsir br ibo record tht polygamous marwg are so celebrated in Utah as t make the proof of polyg amy Try difficult They are conducted in secret and tha parsons by whom they are solemnizd are under such obiiga I tons of secrecy tbat i is lmst impossible impos-sible to extract the facts from them when placed upon the witness stand I both wives ue excluded from testifying to the first marriage as we think they should ba under the xisling rules of evidence b timony sufficient t convict in a prosecu tion for polygamy in the Territory of Utah is hardly attainable But this is consideration by which we can be influenced We must administer the adminite law a we find it The remedy is with Congress by enacting such a change in the law of evidence in the Territory of Utah as to make both wives witnesses on indictment for bigamy For the error indicated the judgment of the Supema Court of the Territory of Utah must be reversed and the cause re manded to that court to hn by it re re manded to the District Court with dire r tions to set aside the verdict and judg ment and award a venire facias de awar vQ refaa novo JAMES H JTcKENKET Clerk Supreme Court U S I |