Show THE CANNON AND MUSSER CASES THE TUB ARGUMENTS BEFORE TILE THE SUPREME COURT the appeal on the motions for new trials in the cases of president A 31 cannon and elder A M musser came up for hearing before the territorial supreme court morning chief justice zane presiding ass associate oblate justices powers and boreman present the defendants were also in court district attorney dickson objected to the hearing of the musser case because one or two points had leen been been raised therein that were not involved in the cannon case and he was unprepared to proceed with the argument until next week mr air brown said that the particular point referred to was mr carians Var Va lans rians argument and due notice had been Zen iven district attorney the defense had done everything in reason to have all prepared in time and objected to the continuance as a great injustice the district attorney insisted on having five days day dayonot snot not ice lee he was also very anxious to have mr varla varian n present at the time of hearing mr brown then said he must insist ansis t on having the case set for saturday but mr air dickson stated that he could coula could not be present on that day and assented to a suggestion of judge ju dge kirkpatrick that until thursday the dinst be allowed the prosecution to file a brief in reply if they so desired judge sutherland asked that there be no restriction as to the time of argument and that be he be allowed the whole of the morning session mr DIcks dickson ori orl said that in that case he be would desire to use this afternoon as his family were going east cast in the morning 49 and he desired to accompany them to ogden this arrangement was accordingly made and judge sutherland delivered his argument as follows lol tol lows 1 tiie the indictment is bad for the reason that it does not state a case including all the elements odthe of the offense defined in the third section of the edmunds act we invoke the rule ruie which is settled beyond all controversy that an indictment must allege all the facts necessary to fill every particular of the statutory or common law definition of the offense sought to be charged I 1 am cr L ly sees 1 bish on dr cr pr se sees E 3 bish on st cr sec see and note I 1 arch cr pi pa and pr 88 note state vs mckenzie 42 me koster vs people 8 mich mic h enders inders vs people 20 id palmer vs people 43 id wood vs people 53 N Y people vs alien allen 5 denio denlo 19 79 brown vs comm mass 65 03 the rule is elementary and it would be a waste of time to collect the cases which affirm it the section of the fatute on which the indictment is founded provi provides desy dest that if any male person ina lna in a territory hereafter cohabits with more than one ones woman he shall be deemed guilty of a misdemeanor the indictment states that the grand jurors find and present that angus af cannon on the first d day of june A D 1882 and on divers ly other ther days and continuously between the said first day of june A D 1882 and the first day of february r A D 1885 imm at the county of salt lake laky and territory of utah did unlawfully cohabit with more than one woman to wit one amanda cannon and clara C mason sometimes known as clara C cannon against the form of the statute of the said united states in such case made and provided 21 under the head bead first stated we rely on two defects of the indictment 1 it fails falls to allege or show that the defendant is a I 1 male person 11 the rule of pleading just adverted to requires that the indictment should allege that the is a male person for in no other way could the statutory offense be fully stated where the offense consists of an act done by a person of a par particular ticul ar description crip tion the indictment must allege that the defendant Is a person of that description people vs alien allen 5 denlo denio 79 9 r ex parte hedley 31 cal commonwealth vs libby libbs 11 met 64 king vs john 3 31 and S 2 the indictment does not allege that the defendant put forth any pretense of marital rela reia relation tion to the women therein mentioned the third section denounces all cohabitation of a male person with more than one woman to T 0 confine it to a cohabitation with t liem them ilem under a claim of marriage the court must interpolate words which th the e lawmaker has not inserted this court has held that it ignot competent so to interpret and hange change a statute L lostan 0 ban gan city vs buck 3 utah 3 36 leoni vs taylor 20 mich tynan vs walker 35 33 cal but the prosecution advocates this c r astrictive strict ive lve construction and the charge the tho court to the jury apparently adopted the same view for oth otherwise berwise holding out these women as wives would have been immaterial while we controvert the construction contended for by the prosecution and insist that th atthe the section applies to all gill males who cohabit with a Plum plurality litY of women we contend that the indictment Is not framed on that reading of the sta statute tute tate which the court below seemed to adopt it Is fatally defective if that construction id Is the correct one it does not state a case within h section three if it refers only to 0 matrimonial cohabitation it must contain allegations of fact tilling filling every particular in the description of the offense as defined defined by construction st of the statute bates va vs state 31 ind 72 schmidt vs state 78 8 id 41 commonwealth vs slack 19 pick commonwealth vs bean 11 ll jush I 1 commonwealth vs stout 7 B mon the mary ann 8 wheat this indictment should have alleged that the defendant cohabited with the women as ulues wives ll 11 the court below erred in the rejection oj of evidence offered by the defendant as well uell as in instructions to the jury the indictment Is founded on the ard 3rd section of the edmunds edmunda act under it cohabitation by a male person with more than one woman is an offense the words of the statute are very general and require construction this f is evident from the first reading g according cordin to the letter of the statute it being an fn m the present tense it is ex post fac facto to it thus purports to apply only to a cohabiting at the time the act passed and was not even for that rea reasoning s sonIn its nature a legislative act on elementary principles to be such it must not interfere with pasi past or the present but look wholly to the future merrill vs she sherbern Sherb abbra brn 1 N 11 II secondly it applies to all males without ie leard regard ard to age unless the word cohabit is prop properly efly eily interpreted a boy below the age of puberty but old enough to be capable of criminal intents might be held within the statute statute if he dived lived with his mother and sister if the act can have a future operation then the word cohabit is made to mean meau shail shall cohabit then association in successive periods in lawful matrimony with two women would be within the letter of the sta statute tate fourth y it if the court applies the popular definition to cohabit nearly every male in the country has been guilty every day since silace the act was passed it tf is a rule of construction that wh where re the words of a statute are general it is the duty of the court to so interpret and apply them thern that the statute shall not lead to unjust or absurd consequences U S vs kirby 1 wall 7 alvord vs lent 23 mich 2712 2 there can be no doubt that the law was intended to be solely prospective it I 1 is s equally clear that it applies only to males maies old enough to come within moral and legal regulations in respect to intercourse with the other sex it is no less manifest that congress con aress gress had no intention to restrict th the privilege of a man who has lost his wife to marry and cohabit again the word cohabit also needs construction st a restrictive construction webster and other lexicographers substantially stant lally ly agree in two definitions ill 1 to dwell with to inhabit or reside in company or in the same place or country 2 to dwell or live together as husband and wife if the court were to adopt the first as evincing the intention of congress it would lea ica lead d to the most absurd consequences that definition must be wholly rejected as having no application to the word as used in this statute it implies no intimacy no relation requiring legal regulation certainly no restriction on account of difference of sex the other definition implies intimacy sexual intimacy and a degree of it illustrated by the dwelling to gether of husband and wife this statute is intended to prevent the living together of an adult male person with more than one woman in the same intimacy as Is usual between husband and wife wile the statute means an habitual living intimacy requiring marriage to justify it in other words I 1 forbids a moan man and two women to f r live together as to amount to cohabit tion because both women cannot can not his la lawful awful wives this statute not only alms aims to vind cate the institution of ma marriage ariage by prescribing a penalty fc aci P polygamy but it enforces a correspondent n practise it will not allow a man mar to live like a husband with more than one nayoman not only shall a man not marry more than one but he shall not take to himself practically more than one woman to live with nim him without marria marriage ze no intimacy lcy tey of the sexes els Eis s offensive to the public nor criminal under this statute unless it includes in fact or by necessary presumption ultra matri boniar copulation all cohabitation which the law deals bithis with Is a sexual cohabitation the law regulates and draws inference from it because it imports a living together in the habitual practice of sexual intercourse it h has as been the subject of judicial consideration for several purposes they deserve a moments notice first as evidence of marriage or its consummation to b evidence of marriage the cohabitation establishes establish eA the marriage habit and needs mutual recognition of a marital relation to give the repute of marriage yardley tardley r ar d ic est 75 pa st badger vs badger 88 N Y 2 tyle Tyler r vs sweet 22 2 2 am dec stevenson heirs vs Me Reary 51 id haynes vs mcdarmont mcdermott 91 NY N Y brinkley VB ag brinkley 50 id ld ev S 1297 1397 that copulation la is part of marital cohabitation is by the common law requiring it for co summation of in marriage arriage 4 W V coast rep 60 statutes make marriage complete by but at common law it was a contract per verbe in cum copula the contract itself produced anat was sometimes called marriage marria 0 de dc facto to distinguish it from a complete and perfect marriage As a contract de tie present it was executory until copulation no earnest was paid there was no part performance and one essential was lacking so that if one of the parties had sexual intercourse with a third person it was not adultery abr in proceedings la in the ecclesiastical courts in england either to annul a marriage or for the enforcement of conjugal rights the right of husband and wife to have sexual intercourse is fully ully f acknowledged Dr LushIngton in D e easa s A g g 1 robt hobt li it 1 says 1 I apprehend that we are ae all agreed that in order to constitute the marriage bond between young persons there must be power present and to come of sexual intercourse without that power neither of the two principal ends of matrimony can be attained namely a lawful indulgence dul gence of the passions to prevent licentiousness and the proc procreation of children 11 lie he annulled the marriage in that case because the female on account of 0 f an incurable malformation of the vagina was incapable of complete coition impotence was recognized as ground for annulling the maruge marriage though though sol in cauich it t the he parta parties ies les live together three years and there is no sexual intercourse by reason of the impotence of the male the court would declare the marriage 1 null and void sparrow vs harrlson harrison 3 curt cart 16 7 eng E R pollard vs 3 id aos A A right to copulate is decoi recognized sized ii zed though there is no legal process for compelling specific performance in orme vs orme orrne 2 addams 2 en eng E R the wife who lived with vik vit her husland husband but was not admitted to his bed sued for relief from this exclusion sir christopher robinson said 1 I think the objection taken to this libel is well founded it bets sets up a case either altogether without the jurisdiction of the court or one at least very far transgressing those bounds of int interference er ference to which it has restricted itself in modem practice matrimonial intercourse may be broken off on considerations of health for instance and there may be others with which it is quite incompetent to this court to interfere cohabitation between husband and wife is a condonation of matrimonial wrongs johnson vs johnson 4 paige forgiveness by a wife for matrimonial wrong cannot be inferred from the parties living together nor even from their occupying the same bed if copulation is in fact act disproved II 11 cohabitation is so inclusive of sexual relations that it suffices to prove adul ter tery when the other necessary conditions exist gor or continuous lewdness in the absence of marriage in all modes of the cohabitation under discussion sexual intercourse is in whole or in part the motive in matrimony lawful out of it unlawful it is a form and habit of association under which such intercourse is habitual ac according cordin to the pleasure of the parties it is true that cohabitation may continue after this lotice motive has lost its force or wholly ceased especially between husband and wife it does not commence however where that motive is absent it does not continue between parties who have joined themselves without marriage or bya by a mere lascivious tie after t the he sexual desire between them has died out it always has its inception in whole 0 or r in part for this purpose and its continuance is always proof of of f the practice la in short cohabitation is ey evidence dence of habitual sexual intimacy if themelis the relis retis no copulation for any period i d during uri url ng cohabitation I 1 it is exceptional and therefore does not militate against t the rule consequently cohabitation is s only tolerated where such intimacy is s intimacy lawful it is never proper to formu formulate cr ate e a general rule on what is merely exceptional cohabitation should be accepted for what it generally or universally implies any habitual association of persons of opposite sex which does not approach in habit to such familiarity as s to be proof of sexual intercourse is s not cohabitation they may exe excite I 1 te suspicion by their mutual conduct and I 1 it t may be sh shown wn that by stealth they y h have ave made opportunities for lascivious s intercourse and still there be no cohabitation abi abl tation cohabitation which requires marriage to commend and justify it is peculiar it is plainly distinguishable e where the parties and the particulars ti colars s of their mode of living as dar gar far ar a as s they Y ever come under general observation a are seen se enand and understood it is sui suf ui i generi sand not likely to be confounded 1 with any other living together no explanation of the relation is so 3 expressive and complete as the one we nave insisted upon a drelling dwelling du elling torether ther r dymale ay maie male and jemale female adult persons in the e intimacy of husband and wik wife the defendant therefore should not t have been convicted if ho did not live in such intimacy with both of the women mentioned in the indictment this is the legal rule or instruction which the court sho she ald aid have given the ju jury ry and it was matter of fact for them to determine whether the defendant was an adult male person and so lived or dwelt with those women as that rule |