Territorial Enquirer | 1886-06-15 | Page 2 | In the Supreme Court

IN EN THE WHIM COURT ruil lT our provo attorneys attorney A G yuth eiland fi son boa bud and S H it Thur thurmal Th urmac marg must late have rande ninde it deep impression on tho iho minds ot of the throe three judges eit ariit ting ling on the bench beach of the utah su preme court tho the other day ly by the and logical arguments the they y delivered the doctrine of segregation in unlawful cohabitation cases wising arising under tinder life law it is not likely however that the judges no matter how bow much im pressed they may have been by the truth troth and force of tho the arguments ad and the sound legal doctrine enunciated will yield ono one point I 1 in favor of the mormon deen danta N and vf NV 21 bromley that these lust hamod persons as well as others similarly convicted be ba fore have bave boen bilen cruelly and illegally tried and sentenced to imprisonment and that tho the methods resorted to liy by the moderal prosecution and approved by the judges referred to notably in the snow case are not warranted under tiny law much less lees the eil ed law tire facts that all intelli gent and honest men and eyen even the majority 0 the utah bar bari illy fully realize and condemn the throe three judges if they aro are to lie be judged by their acts in the respective district courts are not likely oven in the he face of those hose convincing arguments delivered last friday by the tha provo attorneys to RO go back on their own interpretations interpretation a and rulings however absurd and monstrous they were made to appear when brought into the light of rea son soil common sense and sound law people givlio know how bigoted par bizan and ani bitterly hostile those judges have bave been in the past in in cawa cages where the defendants were mormons cormons Mor mons have BO idea will be done I 1 to thomen in whose behalf the erlanda anil and mr thurman made so BO able a def defense onise on friday A couple of weeks ago I 1 we publish odthe ed the purport of mr A G bather lands griefin brief in tho the 0 oe she c lc case ansa since then anil and a few days before the le case WAS heard board in ia the supreme court an addition was waa made to the brief by mr Sa sutherland therland jr it is ia an aamir able argument and should be care fully rind and fairly read b P n interested cause causa of jus ti 1 efow it is ia possible for vitnest ia i 8 after hearing it road raad to ro re train frain from sitting down dowa squat squarely oly on judge powers and lis absurd ruling in favor of the infamous doctrine of segregation and cumulative punishments tho the intelligent and fair mind ed cd reader will certainly be at a loss to understand A 0 aerland BUTHi SE rUND rLAND JR 8 BRIEF the courts in this are not such na as should have been united in the same indictment section 1021 rev st V U B provides that two or more acts or transactions of the same class of 0 crimes crimea or offen ou enbom soa may bo be united in the alio same indi indictment e ament when they aro are buell buch as lie be 1 property we iva L know 13 ow 0 of f no authoritative expo ekpo itin of f the meaning of this latter clauset clause brit wo we understand that two or more offenses oll ensch aro are not lv joined when lit by such joinder the do da is ia or may be deprived ot of any substantial right when for example ho he may be by reason ol of such jo joinder ilider convicted upon less or substantially different te simony passing by the tha question that he is deprived ot of his statutory right ot of exercising tory challenges upon one count or tho the other and that the tha jury after hearing testimony upon e one no count are not impartial upon t the h sot other ti er lie ho is out em barr assed anil and his case improperly influenced in a manner to his interest in another and per hapa hap more anore serious particular this is a coot continuous I 1 inuos s ollen ence cp set bet on foot by a single impulse that of the fust first acts oi holding out the women named in the indictment ua its vi wives ives and kept on foot by I 1 the he un intermit ermit tent force of those acts continuously and uninterruptedly repented repeated tina this court has held notwithstanding this fact that the offense may bo be segre gated into any nur r of distinct p irions of time it ilir this s bo be true then time becomes of the essence of the offense and the prosecution aro are con coll fined in their proof to those times or or periods of time alleged they tira are not pe permitted omitted to travel outside for any pi purpose impose whatever elwell I 1 oray gray com coca v briggs 11 met Comy corn v gardner 7 oray gray wl corn com v traverse 11 allen alien the reason reason for this duc trino which 31 mr r bishop says is ia peculiar to classa chu us as he ha it from those and other authorities is iq because if one day is specified the ilia de may still lie be indicted for unlawful practice a on any other lay day before or after t this his one cue or it several days are then tor for the unlawful on any other days before or after then them citi citing rg ibish cr ce pr note 3 to section page com coin v bar 13 pick corn com v cain it 11 gray 7 com v armstrong 7 gray 49 com conae v connors mass 35 corn com Y keete keefe 7 gray the case casa ol of corn com v connors connora is is the authority ut bority upon which this hia court bases its decision holding tion lion of the offense ot of unlawful co 00 habitation pro proper per the general gendral rule isthan is that continuing of fences such as this cannot be cut into pieces each of I 1 hie if 0 1 li nath of a day or other per r lod led of 0 timo time and a separate inifi indict ct ment or prosecution tor for each main bained 1 I 1 bish gr cr pr note 3 section pago 21 and authorities cited in in alii una brief post this court ho adopt c eil I 1 the of segregation which is la peculiar lo 10 0 the principle that flie proof must la be c confined to the lima allege alli ul 11 ako tko no stated hinted b ing KI 1 I 1 I 1 ilio bo esti castuto elice ot of ili tha ot of fineo in III 1 I 1115 uno fyie f chidi fallu follows wa naturally a n d log ic at I 1 y from i ash D I 1 I 1 I 1 d bo be adap t ed dilso it WH liu be done don I 1 then hen the i lion bv bi the two counts dountain Loun tain in one aro enabled to ret before the tho jury iury the conduct ot of defendant tilix tho the period embraced in IQ HIP flip first count in the consideration of the question of ochia his guilt ailt or 01 innocence on tin the second which they could not do tf if the cef iritts counts gioie ep by lep at ninta at is or trad by different it i rm rim it a presumption of common senshi na as well us as of law that thai a courso COUI BO ot of thinka things once shown to exist is la pro fumed to continue the tha defendant is is uri unjustly justly embarras Hd in in his defense to the second count by the tha force dorco of this thia bation abong and controlling t tion to a arising from tho the proof of the first farst evidence once wholly ampro per in in a of the cases singly bingly is la tb us is made do oburn the balance against iha he do f 0 in in a pros prosecution of tu th jointly burely barely these thebo ore are not offo risea which may bt be proper properly lu jo joined filed it certainly could not have heon been the intention of congress by this section lection of afan an not net to regulate the tha fees end and costs of clerks marshals shala and actor noys ae to permit an accused per oon aon to be convicted wholly or in pait by illegal and improper testimony to Io allow the prosecuting officers to so ao com indirectly by an arbitrary method of pleading what they could not lot do diorec directly aly at the ver very y least the court should havi bavo compelled an election by the prosecuting attorney when the motion was made to that effect by do d fondant fen dant or when it became apparent that the purpose of uniting the two counts in in the indictment was for the purpose of securing separate condic concio IT tiona ons anti and and not for the purpose of meeting the iho proofs it comes clearly within the rule baid laid down dow 11 in in the case of united states v bonnott Ben oett 17 Blat blatche eliff Citing corn com v birdsall BirJ 09 penn y S 0 12 Myers feb doe 2355 but we claim the altense is ia not such as aelen can lia be segregated the ruling in in the snow case upon that point is ia contrary to the great weight 0 authority and should bo be overruled the of fano is a continuous one and all the timo time defendant maintains that course c of f conduct necessary to constitute the ouetea prior and up to the prose tion constitutes but a single offen ell s and can be punished danishe d but in a sin single g 1 0 prosecution 1 bish C pro note 3 to sect heo page 2 bish cr pro i 11 a 8 v mccormick 4 cr 0 a 0 S 3 ilaya I 1 gr to iro allow an offense oft enaa ot of this character charack Br to bo be divided andi and subdivided in the discretion and at the will of a grand jury and prosecuting attorney is to pl permit armit these officers to assume and ful functions actions legislative I 1 in in rj their heir nature to make a law unto themselves vea for each particular case they may say the accused is guilty of a single offense oll enbe or of a dozen or a hundred each indictment present eil ed is a distinct act of legislation upon the he part of the grand jury there is is no principle of law to guide them no rule according to which they must their own ability and will it this kofl enso may be cut into pieces like the polyps or the water worm and esch ench become an entire and com coin thing why may not the on anso of for instance iua tance stealing gas gaa or water through a series of montest al man taps tile the water or gas mains and con ducts the water or gas by a private I 1 D ipe to his bou house also and uses it con tenuously lor for a perica ol of several months or years as the case may be this is held to be but a single off I 1 rog keg v Y firth 11 cox CO CC 23 S 0 joe jao fish dig 2 bibb cr law or for with sl ealine n 0 ore ro from a mine mice by ol of a sin binelo afo abaft mada at one time through a series of 0 years which is ia also held to he be it single offense rex res v Blen Blent hdale dale 2 0 J K 8 0 8 0 jac fish dig there would poona to lio be little if 11 0 any diffee once in ill principle plo between these thes claws of oll and the one lit at bar hero here tho defendant is ia el cl arg ej ed with having liesum anil and in in a certain relationship with the tha women iu in the for or a certain length of 0 time there is ia no brenk break in his continuous courso course of conduct or a minute or a 0 second thero there is in not lot nn an ending of the rola rela tile the mode of life tho the course toward at any particular time ant and a begin beginning beg ining ilag nain again but his actions all tho 0 b ho ol 01 d ilioff 1 b g 0 out n t 0 ot f t these h 0 s e women yo m a n t to 0 th the w world 0 rl tl a na s i fivos y iv 0 s c continues 0 n t i n u e s w without i i ho ut a break or oil an interruption blowing it steadily if annc tic after hour day after day and year after year na as the rai gai flaws troia from the pipe pipa or the ore era from tile the mine u until antil arrested aad and brought to it close by the ion a ue 1 the strong arm ot of the law the division into periods of dimois time is purely a artificial aud alil not real there is ni foundation tor fur it in sound bound law or F principle irin ciple TL the e offense does not consist of single positive and divisi bl act but ii id a mode of cf life tho the const ant aud con continuous conti tinous noaa maintenance of a certain r the un interrupt ed ad observance of a particular course couram of u conduct toward these theae women named in the indictment and aai 1 is i nn an ou o which neither logically nor juial ean cna be divided lint bat thit hut ili hi olt iw mil ina iu le 1 I L rii 1111 il 11 hily lt ito in 11 lah the i edtl tl it ct CIL v t upon P fach ach c e ault we abut look for tho 8 1 R v 8 a 8 vf kimt 1 1 binol ty rr it joinder ul 1 ff ani 1 for or llo lim lui ashment Ish ment took y 1 w S h by in lar 11 1 1 lon n to tn adl kinli to 1111 P 1 1 1 ions TIB The court Coart can construe what Is 14 written not supply or the ilia statute hp be yond its hi terms term extend illaci st lr cr there la Is tic no other statutory authority which either cither directly of 0 ly by im Ille allo coll collais fIs the power so that we ve must look coin trion law tor lor tile soured of this hila it it exist tit at fill 1111 ili d 1 mient eleini io 11 IV I 1 11 to tho power p wr to imp H aniu I 1 J is 11 ll II 11 alli C 0 III 11 retina ref 1111 v 10 cox cm cr JW a 0 1 w fiill DIV DIK swi mill id 11 in 1 11 aaltio 3 13 ab S MU ilic hi i alig lii f lour dis dig 11 s bevo wa sen to KI Ini prIson muil merit ui oil r the and to three tidd illonal upon tile the fourth tj tit begin at H thu th expiration of alio llio nt aline lord cockburn V 1 J ji upon a habeas corpus pruce L ding said the cumulative ren lunchi t be sut alnet 1 by hoine anz of the words of I 1 iho ho statute viet 11 12 1 c 13 au it beems to be v dinitoo dini tod that ir it had not been fur I 1 ihu ho sta tito cumulative sentences BentLi iiri could no dot have anji imposed ili the case ounia of HIB ivorie at koplo ez c rel tweed v lis 60 GUN N Y 1559 tho court reviews the english authorities at great reat jengill len ali find conics it to lila conclusion that hat the boer I 1 dom i ot exist tit nt coin mon inon law see sea ci littlon pose og there being IKI still t ute it nor or ally tit in tit alin conjoint I 1 iw ilia 10 lo lin in upon it single iii it 11 shig silo alo trial und a single verdict or of one single word record van 1111 lut ilot IKI held IK id to exist even eum a 8 statute authorizing the joinder or of loveral finai kiil offenses in fit one 0 IB indictment palolo ex dexrel ret TB cod v GO N Y elseg and 67 61 gsg tu gill U a 8 v albro cir tl CI no dai I 1 N Y opinion liy by Nels Nelso nJ quoted ON GON U y S v DI guirey gui ref con cena liw law jour tit alif haby of certain t 1 emen tarY text writers find lie op of inions of perhaps it fow of ofilio lie courts of this country reider without dun due consideration hwd upon the supplied state atit teof or tile common luw law il aich york court e not to exail should not lot bo be gullli lent tu to overturn 0 veil urn it rule so HO just in n principle and salutary dutary si in lla its ap pg allon