Show SHE IS IN CONTEMPT I The Supreme Court Decides Against Mrs Hendrickson I MUST ANSWER THE QUESTIONS Or Remain In the PenAu Appeal Taken to the United States Supreme Court Yesterday morning the three judges reached a decision in the habeas corpus case of Hester Hendrickson of Ogden who had been committed to the Pen for contempt by Judge Henderson because be-cause of her refusal to answer certain queries propounded to her by the Ogden Grand Jury 1 Judge Boreman delivered the opinion below The petitioner was adjudged guilty of contempt and committed to prison for refusing to answer a question propounded pro-pounded to her by the Grand Jury of he District Court of Ogden when she was a witness The Grand Jury had under investigation a charge of polygamy polyg-amy against one John Hen Irickion and had received testimony tending to show that said John Hendrickson had married two women on the 1st day of January 1885 at the same time by the same ceremony or on the same day namely said Hester Hendrickson and another woman named Mary Lloyd When the petitioner had been sworn asa as-a witness before the Grand Jury she claimed that she was the lawful wife of said John Hendrickson and that as such sbe was exempt from giving testimony tes-timony Upon inquiry by the Grand Jury touching her claim of exemption she testified without objection that she was married to said John Hend rickson on the let day of January 1885 Fnrthtr with a view to ascertain wheiherin fact sbe was the lawful wife ot said John Hendrickson as she claimed the Grand Jury aked her whether John Hendrickson on the same day that she married him married mar-ried another woman naned Mary Lloyd She decliuedto answer this question acd the matter was referred to the court The Grand Jury and the witness were by the court instructed that it was THE DUTY CF THE WITNESS TO ANSWER the question and answer al questions put by the Grand Jury touch the ijquiry as to whether she really was the lawful wife or not of said John Hendrick and that her testimony could not be used by the Grand Jury against said John Hendrickson if it hould appear that she was the lawful wife that the inquiry was made with a view merely to asc rtain whether she was such lawful wife or not Upon returning to the grand jury roow she atoain declined to answer the question and the matter was again referred re-ferred to the court by the grand jury The witness was asked by the curt in the presence of the grand jury whether she would answer the question She replied that she would not and would not obey the order of the court requiring re-quiring her to do so The court adjudged ad-judged her guilty of contempt and committed her to prison there to remain re-main uitil she should answer the question ques-tion or be legally discharged The matter for our examination is whrther the court had the authority to remit to the Grand Jury the question as to thf competency 01 the petitioner as a witness and this question depended de-pended upon the proof of a fact If she were the lawful wife of said John Hendrickson she was prima facie a competent witness under the first section of what is commonly known as the EdmundsTucker law ot Congress Comp Laws of U ahoi 1888 p 114 Bat by the same law it appears that il she were the lawful wife she could not in a case against her husband be compelled com-pelled to testify against her consent In order to ascertain WHETHER SHE WAS THE LAWFUL WIFE it was necessary to ascertain whether she was the first wife That was clearly a question of fact The question which the Grand Jury asked the witness plainly showed that the object of inquiry in-quiry was wbeher really the witness was the first wife as she clamed tobe If she were not her claim of exemption from testifying would fall Before the Grand Jury couldrequire her to testify in the case against Jobn Hendrickson they must be satisfied that she was not the first wife The question of the competency was one of mixed law and fact but not a qu sti > n of doubtfutlaw such a one as they would need the advice ad-vice of the court upon The Grind Juries are and always have been bodies of extensive powers Their examinations are in secret and these extensive powers aregiven to them that they may be enabled en-abled to privately and thoroughly search out the truth in all cases They are given to some extent at least powers to pass upon legal questions under the direction of the court Our Territorial statute Ea sThe Grand Jury can receive none but legal evidence evi-dence and the best evidence in degree to the exclusion of hearsay or secondary secon-dary evidence 2 Comp Laws of 1888 p 684 54914 The Grand Juries are thus to be guided BY TUB GENERAL EULZ3 OF KTIDEHCB subject only to the supervisory charge and control of the court If a witness refuse to answer any question the Grand Jury cannot enferce tee rule requiring answer but must refer that matter to the court The court can then only inquire whether the question is a proper one Here the inquiry was as to the competency of thy witness The question asked by the Grand Jury and which the witness wit-ness refused to answer would have aided the Grand Jury very materially in ascertaining as a fact whether her claim of being the first wife was valid or not If he had answered that she knew of no one else having hav-ing been married to the accused on that day the answer would have tended to confirm her claim of exemption ex-emption but had she made answer that another woman was married to the accused on that dry further I inquiry may have disclosed that such I marriage was prior to her marriage She would then not have been the first wife and her claim to being the lawful wife would have been invalid She had been instructed as had the Grand Jury that said evidence was I simply to ascertain her competency and could not be used by the Grand Jury against the accused Her claim of exemption ex-emption from giving testimony could not be set np as against such a question ques-tion It was not a question as to her giving evidence against the accused The Investigation had not reached the point when her claim of exemption could be set up The Miles case 103 U 8304 to which our attention has been called does not seem to be applicable The inquiries in that case had reference to the guilt or innocence of the defendant defend-ant therein It was evidence in the case against him BUT SUCH IS NOT THE FACT in the case we are considering Here the inquiries could not be used against the accused but were merely to ascertain ascer-tain whether she was acompetent witness wit-ness to give testimony against him It is true that in the Miles case the court said that the testimony the second wife to prove the only controverted issue in the case namely the first marriage mar-riage cannot be given to the jury on the pretext that its purpose is to establish estab-lish her competency That rule was laid down under a former Territorial statute which said A husband shall not be a witness for or against his wife nor a wife a witness for or against her husband Compiled Laws of Utah 1876 Section 1604 Under that statute the Court in the Miles case recognized that the wife was prima facie incompetent The court said in that case Witnesses who are prima facie competent but whose competency is disputed are allowed al-lowed to give evidence on their voirdire to the court upon some collateral issue on which their competency depends but the testimony of a witness who is prima facie incompetent cannot be given to the jury upon the very issue in the case in order to establish his competency compe-tency and at the same time prove the issue Our local statute then absolutely abso-lutely disqualified the wife and the accused ac-cused could object to her testifyine But the later act of Congressthe Ed mundsTucker act above referred to has changed this completely The accused ac-cused cannot raise any valid objection but as to him she is a competent witness wit-ness The exemption is wholly a personal privilege of ths witness THE EDMUNDSTUCKER LAW reads as follows Sec 1That in any proceeding or examination before a grand jury a judge justice Or a United States commissioner or a court in any prosecution or bigamy I polygamy or unlawful cohabitation under any statute of the United States the lawful husband or wife of the person accused shall be a competent witness and maybe may-be called but shall not be compelled to testify in such proceeding examination or prosecution without the consent of the husband or wife as the case may petc 1 Comp Laws of Utah p 1145 Sec lJ Had this statute been In existence when the Miles case was decided de-cided it is evident that the ruling of the court vould have been different as the first wife is under this latter statute a compstent witness We see no reason to doubt the an honty of the G anti Jury to make the nquiy as to the competency of the witness when such competency depended de-pended woolly upon the proof of fct That fact the jury had a right to know in order to ascertain whether the itpj ness was the lawful < wtre of the accused notwithstanding the general rule that tile competency of ajwitness is a question ques-tion for the court Jjtis not necessarily for the court where it depends upon a fact The ascertainment of that tact decides the questiori The simple claim of the wuneithat she was the lawful wife is not the proof of a fact and is not conclusive We think that the question asked the petitioner by the Grand Jury was a proper one and the District Court had full authority to require her to answer Tne prayer of the petitioner for her discharge is denied and she is remanded re-manded to tue custody of the Marshal I FROM JUDGE SANDFOBD In addition to the above Judge Sand ford read the following The petitioner herein claimed to be the wife of John Hendrickson and as such not to be required or compelled to testify before the Grand Jury against him The Grand Jury had the right to ascertain as-certain this primal fact When this had been clearly established then and not before could the petitioner successfully success-fully insist on her exemptions The question Did Hendrickson marry Mary Lloyd the same day he married you 1 was directed to this question of fact If it was shown to the Grand Jury that he had married the same day another woman before he married the petitioner she was not his legal wife aid therefore not exempt from testifying testify-ing When all the facts hadbeen adduced ad-duced before them then if there was still a claim to the exemption it was a question for the court to decide whether in view of all the facts she was the legal wife 01 the accused If the question asked had not been connected con-nected with the exemption which the petitioner claimed a different case would have been presented The Grand Jury may not override the statute allowing the exemption but they are authorized to ascertain how much weight and substance there was to be given to the de laration that she was the legal wife THE BUBBOUSD1NG CIRCUMSTANCES which go to show her legal marriage were proper andmatflrial The jpry was not to be stopped from the farther examination on this question exemp lion by the assertion that she was Ue gallymarried tIt I t-It wasincumbenton the petition luto < show that she was under the Iawkof Congress the first wife of the accused and the question proposed was sufficient suffi-cient to bring out the priority of herm her-m r iage Every question which tended to establish es-tablish her right to an exemption wa proper Tue ceaeis in some respects similar to the disqualifications of a clergyman from disclosing any confession made to him in his professional capacity His exemption is based on the fact that he is a clergyman or priest and that fact mint first be established before he can be allowed or required testify His answer that he is a clergyman is not conclusive on the jury they may interrogate in-terrogate his olaim and by a searching examination test it The power of a Grand Jury is coextensive co-extensive with and limited by the criminal jurisdiction of the conrt to which it is an appendage It clearly appears that the District Court had jurisdiction and that the proceedings are regular and valid upon their face I lhe writ must ba dismissed and the prisoner remanded to the custody of the marshal there to remain until she shall show herself willingto purge herself of the contempt for which she stands committedAN AN APPEAL TAKEN At the conclusion of the reading of the decisions Mr Rawlins gave notice of an appeal to the Supreme Su-preme Court of the United States and asked that the bond as to costs be affixed Mr Peters suggested that 300 would probably be sufficient and the bond was fixed at that amount |