Show IN THE SNOW CASE A Decision by the Territorial I Supreme Court POWERS UPHELD OF COURSE The Chief Justices Gratuitous Insult to the aged Apostle Cohabitation Cohabita-tion Again Defined SUPREME COURT OF UTA TErrITORY January Term A D 18SG United States Indictment vs for year Lorenzo Snow 18851 Zanc C JThe defendant was convicted of the crime of unlawful cohabitation and oi g itgl sentenced to imprisonment in the penitentiary peniten-tiary for the term of six months and to pay a line of three hundred dollars and the costs of the prosecution From this judsr scant lie has appealed to this Court ad insists in-sists that the evidence is insufficient to justify jus-tify the verdict At the commencement the trial the defendant de-fendant admitted before the court and jury that he had married each of the sever women named in the indictment had not been divorced from either and that he claimed all of them as his wives and furnished fur-nished them support It appears from the evidence that appe lant was first married more than forty years ao inXauvoo Illinois to two women Adeline Ade-line and Charlotte at the same time and by one ceremony the latter of the two women a iJ tt OI has since died andthat he has since married mar-ried in the order named Sarah Harriet Eleanor Mary Phoebe and Minnie also one other Caroline now deceased The last marriage was in 1871 The first marriage mar-riage was unlawful because the marriage with two women at the same time is void Therefore Sarah is the lawful wife The evidence llows and it is admitted by defendant that he has lived and cohabited with the youngest and last wife since his marriage to her and that she has four children chil-dren the youngestbeing three months old Sarah Snow the lawful wile was introduced intro-duced as a witness without objection and with other testimony pave the following She ll married Tc nJftao forty years age and now has grown children by him she lives at the old homestead m company IJn sJ K lCJalg L with Harriet and Eleanor and has been living there nearly thirty years five e1r8 ao Minnie lived in one wing of the old homestead and defendant lived with her part of the time up to the time Minnie came there defendant boarded with witness she has never been divorced defendant has supported her their social intercourse has been friendly and he calls on her occasionally occasion-ally he calls less frequently as he grows sgr older iCIC answer to the question State itt it is not about the only difference in your relations in living that he does not call to i I = see 00 you OU as often as he di did formerly v ss wit witness i t ness stated Well sometimes he calls and sometimes he do Vt call I do not see him as much as I did five years ago for he lived right there five years ago ho does not visit Jnle rJeoJ me st much as he did mien he boarded with me Five years ago he lived right them next door Witness also said on cross ev imination that she has five children that two live at home and the youngest is 22 years old that defendant whenever he goes home passes by the doorthat being one way to go passing through the lot that witness went away in the spring of 1855 and that defendant was away six or seven months that he ha called on her two or three times during 18S5 and would remain perhaps halt an hour that since defendant ktati rsdl moved to the now brick house with his last wife he has never slept in the house where witness has slept and no room is kept for him that when he came he would generally W1 be busy with their son that his calls of late were principally with their son that he gieit would enquire if they were getting aright all a-right Harriet Snow another wife stated that she was married to defendant forty years ago in December of that year that he is the father of her children and that she lives in her own home which appellant provided for her noii i he arranges for her support sup-port that he had visited her a few times sort the year 1833 sometimes to enquire bout the children that she could not say how often he visited her but he did visit her witness was asked if there was any Hf erence between their relations during last year lSSS and those of six years aco to rhich question she answered A good deal m my younger days I lived with him as a wife and raised him children Now I am an old lady and do not consider the relations rela-tions binding upon me in my younger days obe EO now I do not livevith him in the same way Mary Snow also answered the nterrogatoryr Is it not true that he has not called 7 much as he used to and is not that the only difference in the following words He does not call so much for the reason that he has been away from town lie docs not VIsit me as much as he did a number of years ago To tho further qucs ion Then the reason he visited you less was because he was away a great i1ng of the year she answered xes I guess so he has been away the last year Eleanor Snow another polygamous wife among other f setJ csiff fzerf Vas things stated I guess I recognized him as my husband and he me as wife during ISS5 dontknow the difference in our re atienship the last year and formerly is he does not live at my place I guess the only difference is S is not l1i mf company so muchyou understand lrevious to thlt1Je haff visited and dined with nie once in a while When he dined with me it was with me and my children unless there was I company to these family gatherings Mr Snow occupied the position as head of the family and occupies the head of the table when he is there J his friends all put him at the head of the table Dr J 15 Cirring ton testified thatin 1SS3 he saww defendant in company with Sarah out riding with her another man was in the carnage thought it was Harriet that he also saw defendant and Sarah Sittlllg together in the theatre in the part of the house usually I occupied thhee ofa cupied by the Snow family and that they altcnvards went out together In the city where defendant lives he and his various wives and their families appear front tone evidence to be regarded by all as one family and this family has a place assigned it in the theatre apart from other icopic that each wife and her family are regarded as llUrt and portion of defendants defend-ants family of the Snow fanuh and that the appellant ssrcgardeda the fiend nC this entire family by each member of it InlSSo the last witness saw defendant go in and come out through the gate in front of the old homestead where sarah and t9 of his polygamous wives lived but witness did not see him go in or come out of that house The officer who arrested appellant testified that alter he had searched defendants house discovered a carpet < that hail been ripped aud on examination found under neath the carpet a little trap door and under un-der that door small apartment and back of that another apartment add in that apartment he found the defendant Do fendantdid not come out when called until the officer made preparation to break the door defendant then said All right 1 am coming out and whenliQ came out unsaid further Titatis all nghtboysj yon have ta done your duty come and taXfta drink with me IiappearSTffbm the endcnccnhaT appellant appel-lant boards and lodges wIth Ins last wife and visits his other wives occasionally though not very of ten i that during the year 16S3 he has not lodged or taken a meal with any ore of leg others that he furnishes them houses to live in and supports them si g nn mc1 rod g i t that he introduces them publicly as hW wives and by his language and conduct holds them out to thejvcrrld as such The evidepcc proved beyond controversy that defendant cohabits with his polygamous wife Minnie The remaining fact to find from the evidence is has he at any timednr iug the year IbS5cQhal tcd1vith the other omen named in indictmentor any one of them It appears frouUhe evidence that defendant eevcntytwo years old and has married nine wives and that seven of those wives arc still In ing To the first he wag married in his youth As his passion for one wIfe beeamesatiatedand dulled by in dplgcrco and gratification and as his lust was again kindled by the appearance of a younger and fresher pr possibly amore atf JinfJ t Pg more attractive woman he would marry again until his marriages have been repeated nine times and nnw at the age of 72 years he is found will seven livn g esthe last being comparatively compara-tively young with an infant in her arms He fsh nl tl ra furnishes homes for support associates with claims holds out and flaunts in the face of society all these seven women his wives And yet he says he cohabits with but one The law must characterize his relation re-lation to them and his intercourse and association as-sociation with them Let us consider case with respect to Sarah his lawful wife A lawful marriage of itself affords a strong presumption of matrimonial cohabitation rtaUfoal bj tattoo because such cohabitation is in accordance ac-cordance with duty andusually attends such a marriage When to this presumption are added the further inferences from the following fol-lowing facts that defendant claimed Sarah all the time aa his wife and that she claims to be such that he provides for her a home and the necessaries and comforts of life that they were on good terms that he took her to the theatre out ndingj visited her occasionally oc-casionally at her homo and was the father of her children The conclusion removes re-moves every reasonable doubt that he cohabited wftSo her as his wife When they were associating together she was not his paramour his friend simply he then had and still has all the rights and opportunities of a husband and she those of a wife They were living and were together to-gether They were livin together Under Iuph circumstances the law will not permit them to say they wero together merely as friends and not as husband and wife It is not essential to matrimonial cohabitation cohabi-tation that the parties should be together all the time if their intercourse and relations are agreeable and they associate together sonic part of the time In that case the law docs not notice the intervals of separation Owing to necessities of human life and the claims of business and trade married people are often in each others company ICPS Pl f for long periods than the defendant and hits wife Sarah were during the year 1S33 and yet they are regarded as cohabiting man and wife Such is often the case with mariners traveling salesmen and other nfilaa ll clashes of persons fiat could egc mentioned They assoiate at long intervals and are regarded hr ig tMgg a gar ed as cohabiting The third section of the Act of Congress of March 22ml I5d2 was intended to reach such conduct as the evidence proves the defendant g W l i 1I1 fendant gmltyofIf any male person cohabits with more than one woman he shall be deemed guilty of a misdemeanor etc When the entire act of which tho above quotation is a part is taken and considered con-sidered tog theMl the light ot the occasion and necessity of its enactment and of tho evil it was intended to ramedywe arc of the opinion that the term cnhabit should Ic given a broad meaning In contruing the term regard should be had to the spirit and general intent of the act hit is an established estab-lished rule in the exposition of statutes that the intention of the lawgiver is to be deduced from a view of the whole and every part of a statute taken and compared com-pared together When the words of a statute are not explicit the intention ia to be collected from the context from the occasion and necessity of the law from the mischief feltan the object and remedy in view and the intention is to be taken or presumed according to what is consonant to reason and good discretion This was the rul laid down by Plowden pp 1057 205 3G3 and by these maxims Chancellor i Kent uflirms the sages of the law have ever been guided in searching search-ing tor the intention of the legislature and commends them as maxims of sound in erpretation which have been accumulated by the experience and ratified by the approbation appro-bation of ages 1 Kent Comm 16i7 Potters Uwarris on Statutes and Constitu tions p 100 note 13 In construing the term cohabitation as used in the act under consideration the Supreme Court of the United State > say in the case of the United States vs Cannon notyet reported It is the practice of unlawful un-lawful cohabitation with more than one woman that is aimed ata cohabitation classed with polygamy and having its outward out-ward semblance It is not on the one hand mentricious unmarital intercourse with more than one woman Generallcgislatiou as to lewd practice is left to the Territorial government Nor on the other hand does the statute pry total the intimacies of the marriage relation Hut it seeks not only to punish bigamy and olygamywhen direct proof of the existence of those relations can be made but to prevent pre-vent a man from flaunting in the face of the world the ostentation and opportunities f g a bigamous household with all the outward appearances of the continuance of the same relations which existed before the act was passed and without reference to what may occur in the privacy of those relations rela-tions lionsTills This court speaking by Borcnian J said Wcat then was the object of the Congress m r t1i scf in enacting this statute It was judging from the whole act intended to be an aid in breaking up polygamy and the pretense fJ Sft 01 t l7 thereof Pacific Reporter Vol 7Xo 7 i374 The opinion of this Court in case of United States vs unseen Ibld p 891 J is to thc same effect It appears plain that the intention was to protect the monogamous marriage bar iEftc other marriage either form orin appearance only whether evidenced by a ceremony by conduct and circumstances alone The end of the law was the protection of the monogamous marriage and the suppression sup-pression ot polygamy unlawful cohabi ation were but means to that end It is proper also to take into consideration the conditions as the National Legislature asan aJ rJodLe anticipated and understood them in which the law was to be applied and enforced They knew the time lad elapsed within which a very large portion ion of those living in polygamy could be punished for that offense and that many of these were among the most influential men in society being the heads of the Church and that the example of their continuing to live with their plural wives under a claim of divine right would be a scandal to society so-ciety and a menace to the lawful marriage that such examples would be a continuing imitation and an apparent justification for their followers either secretly or openly to violate the law Congress therefore forbade plural marriage in appearance only as well is in form and by the example of punishment punish-ment it doubtless intended to eradicate the example of apparent plural marriages as well as the plural marriage in form The evidence against the defendant shows one of the most aggravated cases and worst examples of polygamy He has one lawful t V fsmfl 1J a and six plural wives living and all of them he maintains and publicly acknowledges by introducing thornas Such but claims that he is cohabitingavith but one and visiting the others when he pleases We are of the opinion that the evidence was sufficient to justify the verdict ie The defendant excepted to certain parts 6f the charge given lathe lower court and assigns the giving thereof to the jury as error The charge appears to have been mal m-al one and does not consist of separate instructions 31 part of it should be regarded rg r g garded as qualified by the other portions ff the paragraphs excepted to were not misleading mis-leading when considered the should not be regarded as erroneous The portion lirstexcepted to 8It is not necessarv that the evidence should show that the defend tint and these women or cither of them occupied oc-cupied the same bedslept in the same room or dwelt under the same roof neither is it necessary thatthecvidence should show that within the time mentioned in the indictment in-dictment the defendant had sexual intercourse inter-course with either them This was a statement of facts not necessary to be shown by the evidence and was immediately immedi-ately followed by a statement of essential facts as follows The question isVere they livingin the hauitandreputeotmarriage The offense of cohabitation is complete when a man to aU dutwardappearances Is living andlassociatlng with two ormore Women as wives When Ihepbrtion Of the charge objected to is taken with that which immediately imme-diately followed the jury must have understood under-stood that if the defendant and iny two of his wives were living in the habit and repute re-pute 01 marriage and to all outward appearance ap-pearance they were livingand associating tog theras rnanandwifeit was not necessary neces-sary to show that they occupied the same bed slept 01J the same room dwelt under the same roof or that they were guilty of sexual intercourse The jurymnst have understood that it was necessary for them to believe from the evidence evi-dence that be defendant and at least two this t-his wives l1Ted and associated together as man and wife to all outward appearances a and that it was not necessary that he should board and lodge under the same roof with orhave sexual intercourse with them If theyso understood they were not misled counsel for appellant also assign as error the giving h heu following as a part of l 11rcarfi fs the charge The qnestioniis were they liv insin the habit and repute ofmarriaseIThe offense of cohabitation complete when a man to all outward appearances is living or associating with two or more women as wives If the conductor the defendant has been such as to lead Ito the belief that the parties were living as husband and wife live then the defendant is guilty This paragraph must be considered with the one rf erfas gte in which the jurors were instructed that they must be satisfied of the defendants guilt beyond a reasonable l doubt before they could convict The defendant also excepted to the following fol-lowing clause of the charge and assigned the giving thereof as error Of course the defendant might visit his children by the various women hemay make directions regarding re-garding their welfare he may meet the women on terms of social equality but if he associates with them as a husband with his wife he is guilty The Edmunds law says there must beau end of the relationship relation-ship previously existing between polygamists polyga-mists It says tho relationship must cease So much of the clause as stated that defendant defen-dant might visit his children make directions direc-tions regarding their welf areand mi htmeet hisi wives on terms of social equality was quite as favorable oo the defendant as he could ask and the further etatemcnfCut if heussomntedwltlt lnein as a husband as a husband with his wife he Is guilty was a rather meager statement of what halt been tateu more hilly In the preceding part of the charge The remark that the Kdmunds law savs there must be an end of the relationship previously existing between polygamlss and that it saysv that the relationship must cease was evidently made Inadvertently It was a disconnected till Ulationlnt nded to be a declaration of the gen rU Intent and purpose pur-pose of the law known as the Edmunds Piss iw As It statem nt of the purpose of the Uw it was correct That ace was doubtless doubt-less aimed at polygamy and intended to put an end to It The statement could not be understood as a definition of the crime of unlawful cohabitation And the jury could not have so understood it rhut offense had been fully described in the preceding portion of the charer We do not believe that this stateiuoit of the purpose of the law misled the jury fwd therefore it Is not ground for reversal We are of the opinion that tho excep tlons of the defendant to the ruling of the trial court in admitting and refusing evidence evi-dence are not well taken The action of tho Court In refusing certain cer-tain requests asked by the defendant Is also assigned as error The second third and fifth of them related re-lated Co the definition of the torm cohabitation cohab-itation as used In the law which the defendant de-fendant was charged with violating That term wa defined In the charge with sufficient suf-ficient clearness to enable the Jury to understand un-derstand Its meanln In view of the evidence evi-dence In the fourth request certain conduct con-duct was mentioned that could not constitute con-stitute the offence and the request was not necessary to be given The sixth refused was given in substance sub-stance in the charge so far ac it was proper And we are nf the opinion that the seventh and eighth requests referred to matters in regard lo which It was unnecessary un-necessary lo charge the Jury The charge as given covers all the points upon J fIt f-It was necessary to Instruct the Jury and was quite full and substantially correct After a careful examination of this record we find no ground sufficient to reverse re-verse till Judgment of the District Court and it is therefore affirmed IOWIBS A J conaurs EORBIUN J concurs |