Show POWERS OPINION IN THE SIMPSON POLYGAMY CASE the case of the united states vs thomas simpson Simps for polygamy was argued before the territorial supreme court and submitted june une 8 and was decided this morning the following is the opinion of judge 0 W powers iu tit which chief justice zano and associate justice boreman concur the defendant was indicted for polygamy tried convicted and sentenced to the penitentiary in the third district court of this territory thesus the substantial averments aver ments of the indictment we were re that he intermarried inter married with one emma everett while at the same time his lawful wife wile hannah powell simpson was living the court charged char ed the jury that if the evidence convinced them beyond a reasonable doubt that the defend defendant ant aUt married emma everett as charged and that at the same time he bad a lawful wife living then they should find tind a verdict of guilty provided the jury further found that the first marriage ilal e was lawful the jury were instructed ted that to establish the fact of marriage it is not necessary to produce a marriage certificate or any ary record evidence neither need an eke eye witness of the ceremony be sworn that T hat marriage may maybe be pro proven on like any other fact by the deliberate declarations and admissions of the defendant but that the defendant could not be convicted unless it was found beyond a ria reasonable doubt that he lie was guilty as charged in the indictment the lury jury were also informed that they were the sole j judges adges of tho the credibility of the witnesses and of the weight to bo be given to the testimony the defendant urges that th atthe court erred in charging the jury that they could infer marriage from the deliberate statements or admissions of the defendant i a nono none of testimony the is brought up with the record we must therefore presume that there was evidence to sustain the charge that hannah powell simpson actually existed and that the marriage took place in this territory in order to have arrived at a verdict of guilty under the charge as yeu veu given yen the he lur jur lury jury must have been convinced beyond a reasonable doubt thad that a lawful marriage had been enter entered lid lod into between this woman and the defendant fen dant i in this territory there is no law re regulating marriage no form cr ceremony is required and no record of marriage is kept marriage is left lef t as it was at common lawand consensual marriage is in all respects valid there need be no witnesses present if the parties are competent to contract all that is essential is a present agreement the marriage is competent anen en there is a f full tuli uil all free and mutual consent by parties capable of contracting although not followed by cohabitation nine authorities were here cited cohabitation is but one of the many incidents to the marriage relation it is not essential to it see murphy vs Ys ramsey US U S 42 unde under our law a marriage depends solely upon the mutual consent of the contracting parties they may enter into the marriage relation secretly and the fact may be unknown except to the man and woman As ag was said in the a argument a couple may meet in the highway h at any hour tour in the day or n night ht and there contract a valid marriage r age whether it tends to good morals a s to leave the matt matter c r thus loo too loose 8 e a and n d completely at the will of the parties is not for asto us to discuss that is a matter matten lor for the legislature we have to take the law as we find it no particular form or ceremony being essential and no witnesses being required the question that arises Is how shall shail the factor fact of marria marriage gebe be proven surely it Is not necessary to produce a marri marriage certificate or record evidence for fr the law requires none cleard clearly y the ceremony need not be proven by eyewitnesses for a marriage is valid without witnesses and no ceremony is necessary if evidence of i that nature was required people eople might mihl transgress I 1 the laws polygamy with impunity A man could secretly aseT marlyas marry as many women as be tie elmaset rie Ele pleased him in and the law could not reach proof that two parties have treated each other as husband and wife havo havu lived to together ether as such and have held each other out to the world as such is sufficient to enabled ena blea court or jury to find that at some previous time the parties did as a fact agree to be husband and wife this is the conclusion of bf all the decisions of authority the previous actual consent or agreement to be husband and wife Is the ultimate and essential fact the jury must tind nud the mode of life the holding out the declarations or admissions of the accused and the like are circumstantial evidence from wilch which which the fact maybe may be inferred 1 I 4 west coast rep 51 note the conel conclusion at which we arrive Is that in order to prove the first marriage onan on an indictment for tor polygamy it is not necessary to produce e eye ye witnesses of the ceremony to produce a marriage certificate or other record evidence marriage may be proven by the tho declarations and admissions of the accused and such declaration aro arc proper to ue oe considered by the jury as tending to prove an actual marriage if such declarations convince the jury beyond a reasonable doubt that the parties are married that is all that is required US vs miles 2 utah 19 miles nilles vs U S U S while the instructions complained ot of might liht have been more calef carefully ully worded still the charge when taken as a whole carefully guarded the rights of the defendant and he tie was not injured thereby and the judgment of theli thell court below should be affirmed |