| Show TEXT OF OPINION IN GRAffAM CASE Following I Is the full tull text of ot the Su SI premo Court opinion In the of or John JohnC C Graham convicted In the district court for Cor unlawful cohabitation OPINION In the Court of or the tho State of Utah the State of ot respondent vs s John Johll C Graham defendant aM appel district judge The rhe defendant In this action was tried In Snit Salt Lake county for tor the offense of ot unlawful cohabitation upon an Information mation ma the charging clause cIa of It which reads ren s as follows Thill thu said John C Graham on 01 the thc 1st day of oC January A D 1 1 and andon on 1111 divers s other days das and continually cOl between said ol 1st tiny day of January A D 1 IS 3 the dry day of oC May nt at atthe the county of oC Salt Iak State Stute of Utah did unlawfully with moro molo one olle woman to wit one Mary A Clra Gra Graham ham mid one Sarah Potter Potier commonly known knowlI as Sarah Potter Ora ham The evidence adduced IId at nt the trial showed showell that the defendant cohabited with Sarah Potter as ns his wife In III Snit Salt Lake Inke county without showing that tho relation existing between this woman nn defendant was Illegal In any wn ayi but bUl on the other hand the tho evidence shows that the defendant married Mary al A the thu other uther woman named name In the IndU t years yenn ago ao as n IL plural fit I he then having another wife liv Ih living ing Ina and that thal fur for twenty t nty years c rs or moro he has hns cohabited with her ns as such wife In the county of ot Utah In It was further shown that this woman bus hils never been heen In tho county of Suit Lake within tho period during which it is claimed In tho motion the defendant unlawfully co cohabited habited with moro than one woman nor Ilor has hoa the tho defendant nt ut any an time exl 1 or cohabited with her In Salt Bait Lake county The trial resulted In the conviction of ot the defendant from which verdict thc lluent judgment the th defend defendant ant to this court assigning ns Of principal errors certain of oC the as given by the court and the re Ii of tho court to give certain In no requested by uy the defend defendant ant i Upon Pilon the trial tho court below among I other othel things thing charged the tho Jury as fol follows follow lows low You are arc Instructed It Is not nee necessary essary to 10 that the defendant co cohabited habited with both hoth of the women In trie Information In Snit Salt Lake Jake coun oun county ty but If you ou he cohabited With Sarah Potter In this coun county ty t A 1111 with Mary Graham In Utah county during the time charged In tho Information ho would bo bc guilty And further the court charged that If It he has so 80 conducted con himself to toward word ward her those living In tho vicin vicinity ity hall had reason realon to believe did be bl believe lieve he nA lIln with cald Sarah Potter Graham a his hl wife Ire then you should Rhoul find On the th defendant guilty II t ns U charged provided that you rou Mel find from the evidence beyond n 0 reasonable doubt during the same sanle period ns as above mentioned he hI lived main maintained the Ham relations with Mary hu A Graham although mien relations with her were maintained In Utah county The defendant requested the tho court tp t charge the Ule Jury jur ns as follows 1 If It nt at the date of oC Statehood the do de had two polygamous wives one onlIn In Provo one In Snit Salt Lake he ht hall had the right to marry lOarry cither r and commit no offence In living With her hor If do e fondant had ns as one polygamous wife Potter Pott r lived with lIh her aCt r In Salt Lake the law will presume Sume In behalf of or Innocence he hI was married to her If IC married manlel to her And lived with no other woman In Salt Bait Lako county count then you ou should ac acquit acquit quit REQUEST ST 2 It Is necessary to allege the exact fact and If It U H Is III nought to prove proe nn An offense committed partly In one county count and partly in another then th n It must be bl beso so 10 stated In the Information This In Information formation stales the offense ns corn COlli milled wholly In Halt Falt Lako county ann ana ts by hy proof that It waif waH committed partly In ono one county and partly In another REQUEST 3 If It the jury jur find that the defendant living with one In coun county ty W with another In Salt Lake Lako coun county countr ty tr never living with but ono one it h Salt Lake county count then he cannot C be convicted under un cr this Information which charges him with living with two In Salt Lake county count Sl 7 The act of oC living and an cohabiting with Putter Potter Graham In Salt Lako county was nn na Innocent net act as l tar far ua as this Information IH und and not punishable unless accompanied by that defendant had a III wife No such evidence has been offered In this case and nn the tho jury should ac nc acquit quit All of ot these thase requests were by the court refused Of Ot course ns as the Instructions In truc glen given by b the court were wholly antagonistic In theory to the Instructions lions requested by the tho defendant the tho solo question this court ourt Is h hot of ot the two theories Is correct Our statute statu Ie provides Stat utes i The Information or indictment must contain Second A of oC the nets acts con can constituting the offense orrell e In ordinary concise language e and an In such manner mannerns ns os to enable a It person of common under understanding standing to know what Is Intended ed Section of ot the He Statutes provides ns follows When n public offence shall have been heen committed In part In one county In part partIn in another or tho nets or effects thereof constituting or requisite to the consummation of ot the offense shall have havo occurred in two or more counties the jurisdiction shall be Lp In of ot such counties When n public offense shall have been heen committed near the boundaries ies 1111 of ot two to or more counties the juris jurisdiction diction shall be Ie In of at lIuch counties COUll ties This Thill latter of ur our OUI copied from the tho California statute after atter having received repented judicial construction from the thu highest hl tribunal of oC that State and under nuch liuch circum circumstances stances wo have hn repeatedly hold that this court will as us a n rule accept tho In Interpretation placed l upon such uch bor borrowed rowed statute by the U highest court of oC the tho State from Crom e It came An R early ns aK 1851 In tilt the ell nf C People vs Vl Dough Dougherty erty 7 the th supreme court of ot California hall had OIn llIn to Interpret the statute similar in principle to the one Ine consideration hire hl In 1110 tho defendant ant was waR 1 and convict nd 11 for nn with n a deadly weapon to 10 have n committed In the county of oC Sun 1110 while tho evi 01 evidence dence showed the rime crime to have been committed on OJ board a n vessel ves I either while lying nt her b rth In Sacramento or ur on her to Sail Ban Francisco Tho Th statute under un pr which the prosecution tion was 19 commenced provided that tha t when nn nil offen Is 11 committed within this on all board of ot n vessel 1111 on river ba or slough or lying therein In n the prosecution of her he voy vor ngo ne the tho Jurisdiction jurl hall bo In III an county through ugh which hUh the tho vessel es el h nav na In Iri the of oC her voyage oage Or OrIn OrIn In the county where tho voyage was terminated And AnI the tho court In reversing the Judg Judgment ment said The extra Juris juMs Jurisdiction diction thus conferred upon the th courts of the tho various situated upon the navigable w of oC the l II special In Its itA and In derogation lion tion of the common rule upon this subject It Is IA Invoked the mil and should be set Bet setout Betout out In full In the indictment In III th respect court may bo he considered ns a exercising n limited Juris jurl Jurisdiction diction and the fm f t 11 which Juris must be rl arly alleged sal proved Again In the fOP ne or l ople vs Ie An Ah Own 39 Wl 01 tho th court of California had b hr fn r it tt on Indictment for the forcible for taking and stealing of ot n II mon In one olle and Win Into The Information alleged the offense to 10 hav been bP n committed In I IlOth counties and lx upon i that ground roun the th court ourt says The of or offence orf fence f n e was wall in ono county consummated In another hut It 1 only oil ont one occurring partly In ench It was wu not only onh hut but that the th In Indictment houM AI the th facts so M ns to bring the case 1111 within th Ih statute sI In the en milt of People vs 8 Scott MS SU was a case cu upon nn Indictment for Cor committed in InS San S DIiRO Ih property ob obtained by b the Will was to An Tho pro providing viding that nhen j r taken by I om by II burglary hur larceny or embezzlement ms I TI Into another county tho Jurisdiction of the Is In either county The Indictment al nl alleged the burglary to have been b n com committed In the th fount county wh h r the Information mation was filed San Bernardino court coun count ty t The court held that h that th t county count had tho f r mowing where tM burglar w 11 com milled and that tho property VU i brought Into Ban county must bo ho alleged all lell In llie Indictment This principle linn been beNI universally applied two one or which Is II a exception i fhe exception Is tho often o wan committed within a short distance from tho line bo tw two In which It has been blen held hehl to alil e md tho Iho offense to have been actual actually ly In either The other of ot cases IS In III which there Is I nn apparent diversion from thin rule Is III where the car carried ried by hy the thief through various colin coun counties ties tiel in III which tho law adjudges that Ihal tho offense In truth committed In III each of and hence there Is no occasion ocea lon for a statement In tho pleading of what occurred In any other except tho Ih trial la hud hll All Al of ot tho cases filed by h counsel for tOl forthe the Ih State either como within ono one of at theto two exceptions to tho general Ill or thoy IhY whore where a I tOI serous agent has lus been heen unlawfully sot lel lelIn lu In motion loton In one oUe county the Iho wiry result of ot such luch act In nn other in which event ent of oC course coure the th Jurisdiction of the offense may bo be in cither county from troll tl consideration of ot tha tho I effect of these adjudicated cases upon question before us wo 0 do lo not think t the provision of ot section of ot the tho Statutes outside of oC those re relating ro lating to offenses committed near thu tho boundary lino of ot two counties nt at attl nil tl to 10 this clasH of oC cases He HeAm le Am til cnn can become operative In any criminal case ono on of ot two thing appear Either tho offense muni bo ho divisible and 1 ench part be un unlawful lawful In nal o ot Itself ul committed nt a n different lt time or sec second ond oud the tie offense orense must consist of at moro mOr one net coch of oC which nets or effect of ut such acts must constitute no III unlawful of oC the with without without out tho of which the tho offense could not bo ho Tho Ia mere existence In some Romo other county rOlly than the of ot trial of or ocl I or 01 conditions of the defendant lawful In and of themselves hut but to tobe be he alleged ll or proven In order to tn establish eliab lish l h Iho crime as al do not In the powers of this statute HO 1 nn nH to permit the tho trial of oC tho defendant In 11 luch other county count Applying this reasoning to tho case caso at nt bar viewing the evidence In II the light of the presumption of or Innocence n to 10 every evor portion we must bly como to tho conclusion oon the tho Jury JUI wore wew bound under the tho evidence In 11 this ibis case COSI to regard lear as us wholly ly Iy Innocent ent any relation whether or 01 apparent existing between the de defendant d and tho Iho woman named In 1110 Information who resided In Halt e county COUII and who claimed to bo be his wife If H in nn case the proof shows tho of n relation founded either on or on 01 the tho holding out aUl of Its ls existence between n a man niu n woman living within tho Jurisdiction of ot tho th coutt COUt no evidence of ot nn Illegal Inception or diameter of oC the re relation f 11 lation Is produced the tho conclusive pro e es that ouch iel relation Is I that of lawful marriage U I S vs s Snow 9 Pac Pie CSC U IT S vs 8 Smith 14 I Ine 2 This IB II BO so upon thu Iho well established rule rl that the law presumes a I usual and ordinary slate of ot things than n peculiar and on exceptional condition I It supposes legality rather crime I virtue and morality rather than the tho opposite qualities vs 8 Ferric 23 N V 1 While with his lawful wife wIe in Snit Ball Lake county count the defendant not Haunt In tho foco of oC tha tho world worl the ostentation and mil opportunities s of i I household Consequently the tho defendant association relations with wih the lawful wife In Sal Sni county was waa a n matte latter to be pleaded and un proven by hy the tho yet et Buch fluch association act or condition Wt not a n public nor part o ot any and not being or const nn unlawful element of oC of oC fens fonsa It could not be ho nn not or the cf of of oC nn on act necessary to tho con consummation summation of oC n I crime because no crime Is I composed In whole or In port of lawful We think therefore ther fore that the theon upon Which the main Instructions o otho ot the tho lower court were given were or cr I The fhe appellant also ahn assigns na erro erlO the tho of the court to give the tho fol Col lowing Instruction In The prosecution In II their havo fixed the the time of oC this offense from the tho 1st day of or January 1899 Ind havo given evidence of or other acts Introduced for Cor the purpose of oC showing cohabitation of the defendant with the two women named prior to the 1st day of at January 1898 When the prosecution pro have given hen evidence for Cor the purpose of o showing nt nn offense they are bound by b the time am occasion and having Intro Introduced evidence c of tho nets first prior to that nf ot 1898 won 08 an nn elect Inn to select the prior date within which to tl and the prosecution Is no now limited to n time prior to 10 the 11 rs named date January 1 IS S SWe We see no 10 error In This Court hus repeatedly held that evidence of ot the Illegal marriage between etwo n the de ono or nil oi of ot the women named In the Indictment together with will evidence showing he ho with such SIch women ns os his wives prior to the tho time named In tho Is admissible for the purpose e of oC aiding th Jury Jur In II determining the character of ot the claimed to exist between tho parties during the covered cov by hy bythe hythe the information U S vs 8 Cannon 7 U S vs S 7 The appellant further assigns as er error error the fact that n witness was as per permitted to answer the following ques qUel question leI tion lon with to the tha defendant and his lelal wife ICo nt at Provo I will wi ask you 0 Whether It Is the general reputation tation in Provo among their acquaintances neighbors nel h or anI friends that thi are husband an wife le leWe We think this thin question been excluded While It Is 1 not to show actual sexual relations between en such parties and while It I Is II true that a 1 conviction could have been supported by hy showing other marital be he tween the such Kuch wife such ns lt the holding hol ln out to the Iho world worl a u semblance of ot yet It the tho defend nut could only be he convicted 11 upon proof of oC nIrm Ue nets upon up n his part from which tl Jury might Infer InCer guilt nut Hut It would bo he setting tn n dangerous precedent to permit the tho mere belief or thought ot at and nn neighbors and friends to become nn element In any crime U S V Vi Longford 21 |
