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Show OPINION OF JUDGE Mc KE AN On the Motlou to q.nash the Indictment Indict-ment ngaluat Orlgham Young. Territory of' Utah, ) i Third District Court. M ' The people of the I fnitt-d c . . States m the Territory of Pjc ! j Salt Lake j Urighani Vouns, Sr. J Gi,, : Opinion of Chief Justice McFran. i STATEMENT: The delendaiit w indicted for lewd ; aod lascivious association and cohabitation cohabi-tation with sixteen women, not beiog married to thorn. The indictment is under the following statute : "If any man or woman, not being married to each other, lewdly and lasciviously la-sciviously associate and cohabit together" to-gether" - "" tt "every such 'person so offending shall be pnnished by im-: im-: prisonment not exceeding ten years, and not less than six months, and lined not more than one thousand dollars, dol-lars, and not lesd than one hundred dollars, or both, at tho discretion of the court." Laws of Utah, p. j sec- S2.- ' ; The indictment conlanica sixteen counts and charges as many offenses, ! extending from the year 1 S."4 to the j present lime, there being no statute of limitations. Tho defendant moves to quash the indictment on the following grounds : "lsL That in said indictment, as appears ap-pears upon the face thereof, this defendant de-fendant is charged with sixteen distinct dis-tinct and different felonies alleged to have been committed at sixteen different differ-ent times and places, with sixteen different dif-ferent persons, the same not being different dif-ferent parte of one offense, nor different differ-ent statements of the eame, offense or such alleged felonies being in any wise connected with each other. d. That each and every count in the same indictment, as appoars upon the face thereof, is vague, uncertain ' and indefinite in the allegation as to time when said offenses, or any of them, were committed." It. liaskin, U. S. attoruey, and G. K: Maxwell, for the people. fitch & Wann, Hempstead & Kirk-patrick, Kirk-patrick, Snow & flogo, A. Miner,, Le Grand Young and llosea Stout for defendant. de-fendant. , j McKkan, C. J. Although the question of selecting, summoning and empanelling tho grand jury which presented this indictment, is not involved in tho motion before tho court, one of the counsel for the defendant saw lit, in his remarks, to denounce the jury as having been se-) se-) lectcd and empanelled in a manner uo-: uo-: precedented either in Europe or in America. Had the counsel first investigated in-vestigated this question, he would I have found that.whcn Iirigham Young I was governor of tho Territory, and his selected friend, judge Snow, now one ! of his counsel, sat both upon the dis-I dis-I trict and the supremo bench of the jteiTitory, grand jurors were lor years 1 selected, summuncd nnd empanelled precisely as they now aro. And the counsel would also have found that in repeated cases United States judges, even within the States, havo sometimes some-times found the State statutes inapplicable, inap-plicable, and have ordered juries to be procured substantially as they are procured pro-cured in this Territory, But all this has hothing to do with the motion before ra.urt. The mo-thn mo-thn fo m'p-Ii ft-y Uiafitrsw us return, therefore, to the record. One of the counsel for the delendant has rightly said, that tho court should render such a decision upon this motion mo-tion as shall subserve the interests of the public and tho rights of tho defendant. de-fendant. What arc thoso interests'? ; What arc those rights? It is agreed j by counsel on both sides, that at ! common law the court might either i grant or refuse this motion, in the j exercise of a found discretion. Many authorities were cited on the argument, ! sustaining this proposition. Oneofthc ! counsel lor the delendant sought to account ac-count for the. fact that there seems to i be a preponderance of authority against ' the granting ui such a motion to quash, by conjectunsg that when such motions arc granted they are not often reported, report-ed, flu ulso urged that this court is not bound to respect any decisions rendered outside of this Territory, unless they bo rendered by the supreme court of the United States. Without pausing now to consider : those arguments, let us proceed to i inquire what are the interests of tho public and the rights ol the defendant, i as involved in this moi on V It is unquestionably un-questionably to the interest of the public that a man indicted for crime, if guilty, should bo convicted; if innocent, inno-cent, acquitted; nnd that too with as little delay as may be consistent with tho rights of the accused, and with those safeguards which experience has approved. But will it promote the interests and rights either of the public or of an accused citizen, to have many indictments and manv trials for olfonses of tho same class, rather than one indictment and one trial covering tho whole l The court is bound to presume that the evidence before the grand jury authorized, author-ized, nay, required, the bixtecnoharges contained in this indictment. Lf now, the court should grant the motion of' the defendant, and quash the indictment indict-ment because it oontains these sixteen counts, tho grand jury, which is not yet discharged, would bo in duty bound to find sixteen new indictments. Ur, if the court should compel Lhc prosecution lo elect to go to trial on some one count only striking out the others, then the grand jury would bo in duty bound lo nod fifteen new indictments. in-dictments. Thus, iu cither event, the defendant would be subjected to sixteen indictments and sixteen trials. How this couli promote the interests and rights either of the public or of the defendant, it is not easy to perceive; nay, it isdiQieult to imagine anything more harrassing'and vexatious to the defendant. ludeed, tho learned counsel coun-sel for the defendant failed to show wherein this would be any favor to j their client. Had sixteen indictments , been found in tho first instance instead ; of one, could not the defendant',, ! counsel urge, with irresistible argu. ! ment, that they should be console , dated But is there not some legislation f bearing upon this question? By act , of congress approved Feb. i;th, A.D. 1S53, it is provided that "Whenever : there aro or shall be several charges against any person or persons for the same act or transaction, or fbr two or moro acl or transactions connected together, or for tm or more acts or transactions of the same class of crimes or ojenses whiJi may be properly joined, instead of having several in-: in-: dictmcnts, the whole may be joined in ! separate counts; and if two or more , indictments shall bo found in such cases, the court may order them consolidated." con-solidated." (10 Statutes at Large, p. 102; 1 Brightly's Digest, p. -:;, sec. 117.) What is (lie jutii construction of this : statute? Notwithsfanding the ingc-1 ingc-1 nious elTorifl of one of the counsel to - induce the court (o di.-regard tho ' views, reasonings and opinions of other courts, still it may be prudent first to , listen to those courts and see if their . : decisions be reason.ibiu. in The 1 1 Unit-zd States v Bicktord (4 Blatch- ford's Circuit Court Hep., 3.17). the i indictment contained one hundred i 1 count?, each one being lor a distinct felony, but of the name class. ' ' On motion to qua-h, the court rc- fused, holding that the joinder of the distinct felonies was warranted by th , statute quoted above. In The Unite States vs. 0' Callahan (0 McLean' Circuit Court Hep., j90), the sam doctrine is held- These decisions ar entitled to great respect, having bee rendered by eminent judges of th supreme court of the United State and their associate district judges Indeed, so obviously reasonable am just are they that, were the question ; new one, 1 do not see how I couli reach a different conclusion. In considering the second ground o motion to quash, the meaning of lh words "associate" aud "cohabit" mus be carefully kept iu mind. Webstc defines "associate" thus: "To join ii company, as a friend, companion partner or confederate. - I conveys the idea of intimate union.' He thus defines "cohabit": "To dwel and live together as husband and wife usually or often applied to persons no legally married." The offense charged in each coun could not bo predicated of any on moment or instant of time. To com mit such an offense, a continuous anc somewhat protracted period of time h necessary. There is nothing in thi objection. The learned counsel for lhc defendant defend-ant need not be assured that any motion mo-tion which they may make in -behali of their client, bhall be patiently heard and carefully considered. Nor does tho court intend to restrict ihem ir. their arguments, except upon questions ques-tions alrcadyadjudicated. But let the counsel on both sides, arid the couri also, keep constantly in mind the uncommon un-common character of this case. The supreme court of California has well said: "Courts are bound to take notice no-tice of the-political and social condi-tion condi-tion of the country which they judicially judi-cially rule." It is therefore proper tc say, that while the case at bar is called, "The People versus Brigham Young, its other and real title is, Federal Authority Au-thority versus Polygamic Theocracy. The government of the United States, founded upon a written constitution, finds within its jurisdiction another government, claiming to come from God imperiu hi in imperio whose policy pol-icy and practices are, in grave particulars, partic-ulars, at variance with its own. The one government arrests the other, in the person of its chief, and arraigns it at this bar. A system is on trial in the person of Brighara Young. Let all concerned keep this fact steadily in view; ai.d let that government rule without a rival which shall prove to be in the right. It the learned counsel coun-sel for the defendant will adduce authorities au-thorities or principles from the whole range of jurisprudence, or from mental, moral, or social science, proving that the polygamous practices charged in the indictment are not crimes, this court will at once quash the indictment, indict-ment, and charge the grand jury to find no moro of the kind. The pending motion to quash is overruled. |