Utah Enquirer | 1889-05-31 | Page 1 | Of the Supreme Court's Decision

1 tiie alpine colfs IN THE NIELSEN HABEAS CORPUS CASE embodying points of law no 1527 october term Ex parte in the matter of hans nielsen appellant appeal from tho first judicial district court of the territory of altah argued april 18 1889 decided may mr justice bradley delivered the opinion of the court thia ia an appeal arom a final orr of the district court for the first judicial district 0 the territory of utah refusing to esaue a habeas corpus applied for by the petitioner who prayed to be discharged from custody and imprisonments on a judgment rendered by said court on the day of march 1889 the judgment was that tho petitioner hans nielsen having been convicted of the crime of adultery be imprisoned in the penitentiary for the term of days the appeal to this court is given by section 1909 of the revised statutes the case arose upon the statutes exacted by congress for the suppression of polygamy in utah the ad si action of the act approved march 22 entitled an act to amend fifty three bundled and fifty two f ohp revised statutes of ahe united states in reference to bigamy and for other purposes roads as follows sec 3 that if any male person a a territory or other place over which the united states have ex jurisdiction hereafter cohabits with more than one woman he shall be of a misdemeanor and un conviction thereof shall bo by a fino of not more than three hundred dollars or by imprisonment for not mora than six months jw by both said punishments in the discretion of the court 22 stafa 31 the ad section of the act of march 1837 entitled an act to amend au net entitled an act to amend section fatty three hundred and fifty two ol 01 the in reference to bigamy and for other purposes reals as follows sec 3 that whoever commits adultery shall be punished by imprisonment in the penitentiary bot exceeding three years and when the act is committed between a married woman and a man unmarried both parties to such act shall be deemed gelty of adultery aud when such act is committed between a mar ned man and a woman who is dunmar rawl the man shall bo deemed guilty f adultery 21 on the of september 1887 wo indictments were found against tho petitioner nielsen in the district court under each of these statutes the first charged that on the of october 1885 and continuously from that time till the ol 01 may 1888 in the district aforesaid he the said nielsen did unlawfully chaim live and cohabit with more anan one woman as his wives to wit with ann lavinia nielsen and caroline Ni eiben to this indictment on being arraigned nielsen on the of 1888 pleaded guilty and on the of november lol lowing howad sentenced to be imprisoned in the penitentiary for the term of three months and to pay a fine of and the costs the second indictment charged lut said nielsen on the of may ass in the same district did unlawfully and feloniously with one caroline he being a married man and having a lawful wife and not being married to said t dro litie being arraigned on this on the of september after having pleaded gui ty to the other nielsen pleaded not guilty and that he had already been coni isted of the offense charged in this his plea of guilty to he after he had suffered the penalty by the sentence sen for unlawful habitation tho indictment for came on for trial and the i titi onor by leave of the court on r red orally a more formal plea of riner conviction in which he set up 10 said indictment for unlawful coy habitation his plea of guilty thore tj and his sentence upon eaid abid claimed thai the charge of il cohabitation though fur furmall maly made only for the period from october 1885 to may 1838 yet n law covered the entire period from cnober 1835 to the timo of finding the september 1888 and thus embraced te time within which a crime of a luetory lul tory waa charged to ave been committed and he averred lit the caroline nielsen with whom in atis charged to have unlawfully mabi ed aj a j a wife was the same perm with whom he was now charged i j hive committed adultery that the cohabitation chang d in abi ir t indictment continued without intermission ter mission to the date of finding that indictment and that the ortence charged in both indictments was oue and the same orenco and not divisible and mat ho had suffered the full penalty prescribed to this plea the district attorney the court sustained the demurrer and tho petitioner convicted on the plea of not guilty was sentenced benten ced to bo imprisoned in the penitentiary for the term of days the sentence was as fellows to wit pue defendant with his counsel ie into court defendant was then asked if he had any legal cause to show why judgment should not now bo pronounced against him to which he replied that he had none and no sufficient cause bem shown or appearing to the couri thereupon the court rendered its judgment that whereas said defendant hans nielson having been duly convicted in this court of the crime of adultery it is therefore ordered adjudged and decreed that the said hans nielsen be imprisoned in the penitentiary of the territory of utah at the seat county of the term of one hundred and twenty five days you said defendant hans nielsen are rendered into the custody of the united states marshal for the territory of utah to bo by him delivered into the custody of tho warden or other proper officer of said penitentiary lou said warden or other proper officer of said penitentiary are hereby commanded to receive of and from said united states marshal him the said hans nielsen convicted and sentenced as aforesaid and him the aid hans nielsen to safely keep and imprison in said penitentiary for the term as in this judgment ordered and specified thereupon being delivered into the custody of the marshal the defendant below on the next day or day following during the same term of the court presented to the court his petition for a habeas corpus setting forth the indictments proceedings and judgments in both cases and his suffering of the sentence on the first indictment and claiming that the court had no jurisdiction to pass judgment against him upon more than one of the indictments and that he was being punished twice for one and the same of fence As before stated the court below was of opinion that if the writ were granted ho could not be discharged from custody refused his application that order is appealed tha first question to be considered si therefore is whether if the petitioners petition ers petition was true that he had been convicted twice for the same offense offen sc and that the court eard in its decision he could have relief by habeas corpus the object a to the remedy of habeas corpus of course would be ceat them was in force a regular judgment of conviction which could bot be questioned collaterally as it would have to be on habeas corpus but there are exceptions to this rule which have more then once been acted by this court it is firmly established that ir lue court which renders a judgment has not jurisdiction to render it either because the proceedings of ahe law under which they are taken are unconstitutional or for any other reason the judgment 13 void aud may be questioned collaterally and a defendant who is imprisoned under and by virtue of it may be discharged from custody on habeas corpus this was so decided in the cases of ex parts iange 18 aall and siebold and in several other cases referred to therein in the case of in re snow U S we hold that only one indictment and conviction of the crime of unlawful cohabitation ahe act of 1882 could be had for the time proceeding the finding of the indictment because the crime was a continuous one and was but a crime until prosecuted that a second conviction and punishment of the name crime for any part of said period was an excess of authority on the part of the district court of utah and mat a habeas corpus would lie for the discharge of the defendant imprisoned on such conviction in that case habeas corpus was applied for at a erm term t subsequent to that at which the judgment was rendered but we did not regard this circumstance as sufficient to prevent the prisoner from having his remedy by that writ it is true that in the case of snow we laid emphasis en tho fact that the double conviction for the same ot bense appeared on the face of the judgment but it it appears in the indictment or anywhere else in the record of which the judgment is only a part it is sufficient in the present arse it appeared on the record in the plea of outre fois convict which was admitted tobe to be true by tho demurrer of the government wo think that this was sufficient it was laid down by this court in in re coy U S thac the power of congress to pass a statute under which a prisoner is held in custody kiy be inquired into under habeas corpus as affecting the jurisdiction of abo court which ordered his imprisonment and toe court speaking by mr justice miller adds and if their of power appears oil tho face of the record of bis condemnation whether in the indictment or elsewhere the court which has authority to issue tho writ is bound to release him referring to ex parte siebold U S in the present case it is true tha ground for tho habeas corpus was not the invalidity of an act of congress under which the defendant was indicted but a second prosecution and trial for the same offense contrary to an express provision of the constitution in other words a constitutional immunity of the defend lut was violated by the second trial sad judgment it is difficult to see why a conviction and punishment under an unconstitutional law is more violate of a persons constitutional rights than an unconstitutional conviction and punishment under a valid jaw in the first case it is true the court has no authority to take cog of the base but in the other ie has no authority to render judgments against the defendant this was the anse of ex pane lange where the court bad authority to hear and determine tho case but wo held that it had no authority to give the judgment it did it was the same in the case of snow the court had authority over tho case but wo held that it haa BO authority to give judgment against the prisoner ho was protected by a constitutional provision securing curing Ke to him a nad right it was not a case of mere error in law but a case of denying to a per son a constitutional right ani where such a case appears on the record the party is entitled to be discharged from imprisonment the distinction between the case of a mere error in law and of one in which the judgment ia void is pointed out in ex parte siebold US and is illustrated by tho case of cx parte parks as compared with the eases of lange and snow in the case of parks there was an alleged misconstruction of a statute we held that to be a mere error in law the court having jurisdiction of the case in the cases of lang and snow I 1 there waa a denial or invasion of a constitutional right A party is entitled to a habeas corpus not merely where the court is without jurisdiction of the cause but where it has no constitutional authority or power to condemn the prisoner As said by chief baron gilbert in a passage quoted in ex parte parks 93 U S 18 22 if the commitment be against law as being made by one who had no jurisdiction of the cause or for a matter for which by law no man ought to be punished the courts are to discharge this was said in reference to cases which had gone to conviction and sentence lord hale laid down the same doctrine in almost the same voids 2 balesh Ha lesH R and why should not such a rule prevail in favored liber if we have cause it has been from inadvertence the law could hardly be stated with more categorical acau racy than it is in the opening sentence of ox parte wilson U sa where mr justice gray speaking for the court said it is well settled by a series of decisions that this court having no jurisdiction of criminal cases by writ of error or appeal cannot discharge on habeas corpus a person imprisoned under the sentence of a circuit or district court in a criminal case unless the sentence exceeds ahe jurisdiction of that court or there is no authority to holdi im under the sentence this proposition it is true relates to the power of this court to discharge on habeas corpus persons sentenced by the circuit and district courts but with regard to the power of discharging on habeas corpus it a generally true that after conviction and sentence the writ only lies when the sentence exceeds the jurisdiction of the court or there is no authority to hold the defendant under itin jhb present case the sentence given was beyond the jurisdiction of the court because it was against an express provision of the constitution which bounds and limits all jurisdiction being of opinion therefore that habeas carpus was a proper remedy for the petitioner if the crime of adultery with which he was charged was included in the crime of unlawful cohabitation for which he was convicted and punished that question is now to be considered we will rovert for a moment to the case of an re snoie three crimes of unlawful cohabitation were charged against snow in three indictments the crimes being laid continuous with each other one during the year 1883 one during 1884 and one during 1885 we held that they constituted but a single crime in the present case there were two indictments one for unlawful cohabitation with two women down to may 13 1888 and the other for adultery with one of the women the following day may 14 1888 if the unlawful cohabitation continued after th of may and if the adultery was only a part of and incident to it the then an indictment for the adultery was no more admissible after conviction of the unlawful cohabitation than a second indictment for unlawful cohabitation would have been and for the very good reason that the first indictment covered all continuous unlawful cohabitation down to the time it was found the case would then be exactly the same as that of in re snow by way of illustrating the argument we quote from the opinion in the case mr justice blatchford delivering the opinion of the court said the offense of cohabitation in the sense of this statute is committed if there is a living or dwelling together aa husband and wife it is inherent i ly a continuous offense haying durai turn aud not an offense consisting of an isolated act that it was intended in that sense in these indictments is shown by the fact that in each the charge laid is that the defendant did on the day named and thereafter and continuously for the time specified live and cohabit with moie than one woman to wit with the seven women named and during all the period aforesaid did unlawfully claim live and cohabit with all of said women as his wives thus in each indictment the offense is laid as a continuous one and a amplo one for all the time covered by the indictment and taking the three indictments together there is charged a continuing offense for the entire time covered by all three of the indictments there was but a single offense committed prior to the time the indictment was found on the same principle there have been an indictment covering each of the thirty five months with imprisonment for seventeen years and a half and fines amounting to 1000 or even an indictment covering every weak it is to prevent such an application of penal laws that the rule hs obtained that a continuing offense of the character of the one in this case can be committed but once for the purpose of indictment or prosecution prior to the time the prosecution is instituted these views were established by an examination of many authorities now the petitioner in hie plea averred in terms that the unlawful cohabitation with which he was charged in tho first indictment continued without intermission up to the time of finding that indictment covering the time within which the adultery was laid in the second indictment he also averred that the two indictments were found against him upon the