| Show CANNON vs unaired STATES ARGUMENT 0 of t P r a IS RICHARD RICHARDS 9 F ESQ sq AH tak tar unanswerable PLEA PLEX rob FOB TUB TILE appellant 7 1 krie trie V th 8 at fedur court k hili byll mr r premised his argument by 8 detail of the facts involved in the trial triai and conviction of his bis client including the assignments of error lie ile then stated the first essential point in the casety case tp be was the indictment in sufficient lelent in answer to this question he presented and emphasized the objections which were offered in tile the lower courts and quoted in to support of his position numerous aut authorities support oriottes or ittes FI following lowing a pertinent bilt exhaUst exhaustive iVd argument tipon upon this Issue hie the tie proceeded to the chev vital point of the cause the con of section three of the edmunds law that it i any male person in a territory or other place over which the united states have hare exclusive jurisdiction hereafter cohabits ith more than one woman he shall le be dhe deemed med gall guilty ty of a misdemeanor andon and on conviction thereof shall be p punished unish edby by a fine of not more than three hundred dollar dollare or by imprisonment for tor not more than thin six eix months or by both mald taid punishments in ltd dle die creton ot of the couri court the gives a somewhat thorough synopsis 1 I 0 but far fro from in complete report of mr richards remarks upon that question importance OF TILE THE ISSUE may it please the court it is beyond my power an and certa certainly n y not w within t n my desire asire t to exaggerate the grave necessity 8 it which exis exists for your careful and all ail authoritative orita tive construction of thia this por a tion of the edmunds law it Is vitally li tait lili requisite to the welfare ot 31 a great threat section ot of the ReDd blid bild that this angust august trl tri tribunal bual shall define the term 11 cohabit as used in iff the section under tinder consideration and that this court shall determine in no ambiguous words worda what constitutes the offense of unlawful cohabitation I 1 am not here for the sole purpose of saving saying angus M Cannon the plaintiff in error I 1 from serving arving his few remaining days das of imvris imprisonment ament nor from the payment of the fine flue which stands against his name upon the marshals register my aty client as an individual could better afford to serve the remainder ot of his term and pay the sum of three hundred dollars than to spend infinitely more time and money in this effort to obtain what would at best be a tardy and ineffectual f ual nal redress but I 1 am here to ask that this court coart will exercise its exalted power and shed light upon a path pah which hundreds of citizens must tread at present that way is dark this statute has been so variously so equivocally and so construed by the lower courts that it has become a veritable catacomb of fatal curnin turnings I 1 s today to day in some of the territories of these united State states 9 a large portion of the population is directly or indirectly affected by this act it involves property and personal liberty with some citizens life itself is at stake for the imprisonment of aged toll toil woin men may mean death and yet I 1 venture to say that if any man who is under proscription crip tion by this law were asked to tell its exact meaning he could not answer even to save himself from a fate f ate tenfold foid fold worse than that which now im no lawyer can give a definite reply with confidence and when the lower courts construe they fail to lessen the confusion and mystery there are many cases in the territories now in course of adjudication involving this point and there are scores if nat not hundreds of similar prosecutions imminent while this startling I 1 condition remains no man even with the best legal advice in the tile land can tell under this act how to conform his life to the law it is therefore plain that NN whatever hat ever disposition may be made ol 01 the technical and intrinsic points ol 01 this particular case justice and humanity unite in demanding that the th fuli full power powe scope and meaning of the th edmunds act shall be made tile the law says that if it any male person shall hereafter cohabit with more than one woman he shall be deemed guilty of a misdemeanor etc the words of the statute auevery are very general and require construction thesis this is evident from the first reading the word cohabit seems seeing to be used ina lna in a concrete sense like the words larceny burglary burola and other words that imply special def dej denning ining lulng facts but the statute has not given the fact facts which shall constitute sti tute the prohibited cohabitation ard it is the first instance of its use i in a criminal statute without any qualifying word to aid iu in defining it it therefore needs construction a restrictive strict lve ive construction definition OF COHABIT webster and other lexicographers substantially lilly agree in two definitions of the word cohabit coll coli aDit 1 to dwell with to inhabit or reside in company or in the sa same me place or country 2 to dwell or live together as husband and wife if the court were to adopt the aretas llast as evincing the intention of congress it t would woud lead to the absurd consequences bences that definition must be rejected as having no application to the word as used in this statute it implies no intimacy no relation requiring legal regulation certainly no ye restriction on account of difference of sex the other definition implies intimacy sexual intimacy and aud a deglee 1 of 01 it illustrated by the dwellen dwelling together of husband and wife this statute is intended to prevent the living together of ot an adult male person aith with more than one woman in the same intimacy as is usual between husband and v wife lie tie the statute cleans an habitual living intimacy requiring marriage to in lp ther other words it f forbids a man mail to st I 1 live IV til nether together as its to amount to coball M tatlyn sydni because beth aduleit can cau diot riot b be e his lawful wives all cohabitation which the law deals with Is sexual the law regulates and draws inference from it because it imports living together in to the habitual practice of sexual intercourse no fati lati macy of the sexes Is offensive to the tho public nor criminal under this statute unless it includes in fact or by necessary presumption sexual intercourse tile the word cohabit has never been used I 1 in an any crim I 1 m I 1 laal tai tal law to incan anything thing lety legs ihan iban A n actual sexual intercourse couise this Is an incontrovertible statement in all the discussion of this hisa question besto up to this moment not a single sing le case has hah a been found where the d doctrine ocar in 1 is heiy held held heid that without intercourse a criminal cohabitation exists I 1 chal chai challenge lenge leDge the prosecution to a cop ura ira diction you aly may scan the exhaustive oriet brief of the government you may ethelon not note the long iong list of authorities pre s belted ayt by the ic hg industrious and ind eminent c counsel 1 on an the other oilier side ot of this tills case f t but you ili iii will ilot flot find rind dzingle a single prece precedent dent to controvert the claim which wilch we make that cohabitation in a criminal law means nothing less than actual sexual intercourse further I 1 maintain that the authorities quoted by bk counsel for the government to establish a difference between matrimonial cohabitation aud and matrimonial intercourse refer entirely to actions in divorce or for lor the determination of conjugal right sz and hareno have no relation to the construction of cri crl crittl jhai jaal al lav law it Is true that la in the fisli eccless ecclesiastical couris courts in some ins instances anees a distine distinction ion lon has been drawn between matrimonial intercourse and matrimonial cohabitation for instance the case of orme Orm orme ewas was an action brought by the wife against her spouse to enforce a restitution restitution of her conjugal rights the court he held d that the wife was id ia the habitation of the husband and was wals therefore thelie therie fore cohabiting with him and that the court could not enforce sexual intercourse between the parties the reason for tor drawing this distinction Is manifest by what extraordinary process could the court have enforced a decree Coffi commanding minding sexual intercourse but this has no relevancy to the present present case nor to any criminal cause criminal cohabitation and matrimonial matri monal cohabitation are widely different the law governing the former seeks td regulate the intercourse between the sexes the law govern governing n the latter merely regulates the domestic relation I 1 call your our attention to the significant fact that the quotation from bishop cited by opposing counsel was from the leat great jurists work on marriage and divorce and not from his work on criminal law I 1 reiterate t the he assertion that you would look in vain in the latter work for any such construction st when in a civil case the question has arisen as to consummation ot of a marriage the term sico eico cohabitation it 4 been used as the thu equivalent pt sexual relations and could have no other meaning so if f the question Is whether a marital offense has heen been condoned condone dj the cohabitation after knowl knowledge edke edhe of the thie offense means sexual intercourse only it is not necessary necessary that the wife shall withdraw from the house she maybe mat may be unable to do so 1 and it Is enough that she ceases cohabiting with the husband by wi withdraw ing g from hig bis bed the popular use of the word espe i mally dally when applied to the relation of the sexes conforms conforms to this meaning and whether we look to j judicial pr pro prok 01 1 ce edings r lexicographers or or common cech gech speech the same signification Is found had d congress intended Intend ett eit to use ue the word in a new signification a definition would have been given to carry out the intent the omission of the word lascivious is of no significance the word unlawful used in other sections of the act as describing cohabitation takes the place ot tile the words lewd and lascivious as used in iri similar laws and ana means the same thing thin statutes against lascivious cohabitation do not refer to a cohabitation with more than one drie wom woman anhut nut but are directed against onn one who las ciui civi bously cohabits eith coith antl anil woman and aud the word lascivious only means wanton and unlawful and that the woman is not ther thee wife of the man mau this statute against cohabiting with more than one woman retains the full meaning 11 of the term lascivious and perhaps more for both women cannot lawf lawfully tilly be the wives of the man and the cohabitation cohabIt 4 tion with at least oneff them must be unlawful WHAT WS WAS suo SHO TRIAL mr justice Miller 1 Did the court construe it to mean oneace one act of sexual intercourse mr richards no your honor we wit offered to prove that there had been no act of sexual intercourse but the court rejected the evidence as immaterial and irrelevant it was proven proved ov 0 the trial by the witnesses for the prosecution that my client had married amanda ad ltd clarather Cla Clar athe atho two women named ini iti the indictment and i with whom the cohabitation was charged several years before the passage of the edmunds law which first made such cohabit cohabitation atlon a crime the marriage with C para jara having taken place abo about lat lit ten years a ago 0 tile tiie evidence was that before and anT since since the passage of 01 the law be he and the two women had lived in the same house and that thai tha be he haa han had hao eaten with each of them about ohe ofte third of the time we offered to show by the same witnesses that amanda was married to hio him before clara ciara that with thir their families faul fani illes they oc oce coupled separate sepa seVa tate including separate dining rooms add kitCh kitchene kit chena trib ja iud lud taken their meals ia their respective spec spee etive tive rooms roams that aften alter the EU ed merids law had passed batth both houses of can congress ress and before its app approval royal roval by the president tua tue defendant announced to clara amanda and viela families that he ile did not intend to td violate that law but should live within it so bolong long iong as it remained a law and after that time aud and during the times alleged in the indictment he ne did not occupy claras room or bed or have intercourse with her that clara and her family faintly were dependent upon the defendant lor tor support and that be vas was financially unable to pro prop vide a separate house bouse for ht her r and her family faintly yet all this ev was excluded ej from the jury lury which we wa was gross error in the court below for we affirm this proposition that with mth such facts admitted in evidence no judge or jury could tind find against my client either tho the substance or the shadow of unlawful cohabitation the this court bade the witnesses tv to aspea speak k until all the circumstances tend tending to quilt were brought out in evidence v d erice crice and then their mouths were cl closed ed b bv judicial order upon an ad adroit rolt neg egl gre r gatlon gation atlon of half ot the facts a conviction t was had a fair statement of all the facts would llave have established innocence a cruel illustration of jhc phe be classical paradox that the half is better for for tor the prosecution than tue tae whole I 1 there was no evidence whatever that the plaintiff in error at any time after the passage the edmunds law said or claimed that clara C cannon iannoa was his wife on the contrary we nye offered and insisted upon our right tight to prove by the witnesses for the prosecution that an actual separation had occurred between angus it M cannon and clara 0 cannon and that the separation or parting or mutual earthly divorcement whatever may be the proper term was wag absolute except as to those matters of ordinary esy in life and conduct perfectly innocent of 0 themselves and such as are of daily occurrence between hosts aud and guests dwelling under the same roof with friends ol 01 the other sex and yet the jury was instructed by the trial j ludge judge ud ge as follo follow ws si i if you believe from tho evidence beyond a reasonable rea fea doubt that ulle uby defendant lived in the sanle sanie house with w itu ith amanda cannon and clara 0 Oa cannon callnon tinon linon the women named in the indictment and ate at their respective res tables one oue third of his als time or thereabouts and that he held them out oat to the world by his language or his conduct or by both as his wives you should lind find him guilly the issue here submitted was whether tile the plaintiff in error had held olit oat these women as his wives by bis his language or conduct because it was UL on disputed that they lived in the same hou house seand and aud ate altheir at their respective tables substantially as stated yet the court excluded from the jury ev evidence offered oy him to prove that he had when the edmunds act was passed by congress and before its approval by the president dent lent given up his marital belati relations 0 n S with clara C cannon in other words he was not permitted to show upon the issue made by the court itself as to 10 whether be he held heid he id these women out as his wives by b words or ox conduct that he had a ui surrendered rendered the trio highest and dearest right of a husband let it be admitted for the sake of the argument that sexual intercourse is not necessary to constitute S the offense of unlawful cohabitation denounced by the edmunds act and that the trial |
