Show THE REFUSED in alie peter barton habeas corpus case BY THE SUPREME COURT OF THE TERRITORY the effects of plead i is guilt to the charge of adultery on tuesday a decision was rendered in tho case of peter barton now held in the penitentiary on a conviction of adultery after a conviction ef unlawful cohabitation for the same time the opinion of the court refusing to issue a writ of habeas corpus is as follows supreme court territory of utah in the matter of the petition of peter barton for a writ of habeas corpus J the case as stated in the petition is that the petitioner was on the day of april 1888 twice indicted by alie grand jury of the third district court that both indictments were found and presented at the same time that the names endorsed on each as witnesses were the bame that one charged him with the crime of adultery alleged alle geI to have been committed with one mary beesley that the other charged him with the crime OJ unlawful cohabitation alleged to have been committed by living with mary barton and mary beesley as his wives that the indictment for adultery alleged the crime to have been committed within the period of time covered by the indictment for unlawful cohabitation that on the ath day of february the petitioner was arraigned before the court oa the charge of unlawful cohabitation and pleaded guilty that thereupon the court suspended sentence upon that charge that immediately thereafter he was arraigned upon the charge of adultery and plead and thereupon hajwas sentenced by the court to imprisonment tor the term of fifteen months upon that charge and that he is now imprisoned in the penitentiary thereon alie petitioner avers that the mary beesley named in alie two indictments is one and the same person the petitioner alleges that the imprisonment is illegal and void in this that the cobit had no jurisdiction to pass judgment against your petitioner on the indictment for adultery for the reason that the offense offence charged ia the same as that contained and set ont in the action indictment nd records for unlawful co habit anon that the prosecution and conviction for unlawful cohabitation barred any further prosecution or proceedings ce and that the court had no jurisdiction is or power to take any action upon the indictment for adultery the petition concluded with a prayer that a writ of habeas corpus be issued to the bend that he may be discharged from imprisonment the district attorney has appeared upon this application and denies tho petitioners petition ers right to the writ it will readily be seen from the foregoing statement that the petitioner was regularly indicted convicted and sentenced for the crime of adulte that there is no illegality appearing upon the record thereof but that the petitioner ia seeking to impeach or destroy this record by alleging and showing the existence of another made in another case and which is entirely separate and distinct and which if the facts set out in hia petition are true might have constituted a good defence to the charge of adultery if interposed by plea of former condic tion upon a prior prosecution can be made available for the first time on an application for a writ of corpus in this court after conviction on plea of guilty without pleading it or in way calling it to the attention of the trial I 1 court the code of criminal procedure of this territory and its provisions were entered into in detail after which the court continued the petition relies upon tho cases of ex snow U S and ex parte nielsen lately decided by ibo riu preme court of the united states m the nielsen case nielsen had been convicted of unlawful cohabitation and sentenced to the penitentiary after his term of imprisonment had expired he was again prosecuted upon a charge of adultery alleged to haye been committed within the period covered by the charge of unlawful cohabitation and with one of the same women with whom lie was charged to have unlawfully cohabited to the charge of adultery he pleaded the former conviction setting up the record fully and averring the identity of the two charges to this plea the government demurred the demurrer was sustained by the courland cour tand he was put upon trial on hia plea of not guilty before tha jury and was convicted and sentenced the supreme court of the united states bield that the charge of adultery was included in the of unlawful cohabitation and that demurrer the to his plea of former conviction was improperly sustained and that lie should be his former conviction was a part of the cecora 01 nis conviction lor adultery he had plead it the demurrer to his plea admitted its truth the bame as though it had been found by the verdict of the jury A fact had thug been established which cleared him of the charge and the court had no jurisdiction to proceed further but nevertheless he was put upon a trial of his plea of not guilty and convicted and sentenced all this appeared in the decord of ins conviction in the snow case the record was the same the petitioner claimed eliat the court had no jurisdiction over the offense of adultery charged against him because as he avers lie had been convicted of the same identical before and he cites the constitution of alie united states to the effect that no person shall be twice put in jeopardy the courts however are the properly constituted tribunals to determine the question as to whether a party has once been in jeopardy and the district court in which the petitioner was convicted had jurisdiction to determine that question it is equally clear that courts have no jurisdiction to imprison a person he has committed some crime but they have jurisdiction to determine the fact as to whether the crime has been committed and to proceed with the inquiry until it is determined if it is found that no crime has been committed the jurisdiction of the court ceases but if it has been then the court had jurisdiction to inflict the punishment when a person is charged with a carime before a to determine his guilt or innocence and be claims immunity by reason of a acquittal the burden is upon him to plead if in answer to the charge an d to establish it by evidence and if he does not so it is waived here authorities were quoted the court continued the question of a former conviction was n nv itter of defence and was a question for the determination of the court havin jurisdiction to try the charge it involves a question of fact the identity of the of fences charged the exist once and priority of the record relied upon and no habeas corpus this court cannot try such an issue ex parle bogart supra state vs webb supra church I 1 on habeas corpus it is also claimed that the judgment was void because etwas passed in less than six lourd after the plea of guilty was entered and a nd was therefore in violation of the statute the copy of the record attached to petition shows that alie petitioner was and pleaded guilty and requests that senj not passed on the i D same day sentence was imposed the plea arid sentence are separate entries on the journal atia claimed that this shows that less than six haars hoars intervened between the plea and sentence we do not that is a necessary inference but if it was it would be but a mere irregularity which could not be reviewed on habeas corpus et bea ex smith 2 Nev an order should be entered denying tho application we concur zane C J judd J T J andera anderaon on associates justices this closes the way to the release of mr barton from his unlawful imprisonment unless upon a chowins sh owins f the facts president chovis 3 to grant a pardon |