Show imprisonment FOR FOB LIFE the penalty for unlawful cohabitation indefinite the offense may be segregated ad Libi tum following is the full fall text oi of the decision of the territorial supreme court in the case of the united states vs N H groesbeck convicted in the first district court at provo for unlawful cohabitation upon an indictment which segregated the offense into two counts the attorneys for the defense raised a number of new and important points affording some gr ground aund for hope that the action of the lower court would not be sustained but bat all such hopes proved futile Surn miE COURT UTAH TERRITORY the united states respondent dent vs nicholas s H groesbeck appellant ZANE C J the defendant was tried in the first district court on an indictment containing two counts and convicted and sentenced to imprisonment and to pay a fine on each from that j judgment lie he has appealed to te this court the first count charges the defendant with unlawful cohabitation between the day of january 1881 1884 and the day ol of june of the same year with the three women named and the second is for unlawful cohabitation with the same women between the last date above named and the day of the following december to of 01 counts pleaded not guilty and before the jury was im paneled moved the court to rule the prosecuting attorney to elect one count and to go to trial upon that the court overruled the motion the defendant excepted and now assigns that ruling as error the appellant by his counsel insists that cohabitation for the entire time of both periods constituted but one offense that the grand jury had bad no legal right to divide the tae time and charge two iwo offenses the crime of unlawful cohabitation consists in living or associating with more than one woman as their husband apparently in the marriage relation under the semblance thereof the claim of the appellants counsel rests upon the idea that the beginning and continuation of the association are essential to the offense that the mere continuance of the show of marriage is not sufficient if a man should live with more than one woman as their husband during three years it is s clain claimed aed that in so doing le he would commit but one offense it is admitted however that it if he were to cease to cohabit at the end of the first of the three years and again live with them as their husband during the last of the three he would thereby commit two crimes assuming the law as claimed the man who cocab cohabits its three years commits one crime and is subject to one punishment only while he who cohabits two years commits two crimes and is subject to two punishments according to this the greater the cohabitation the less the punishment the punishment is to the cohabitation in an inverse ratio such a view furnishes no inducement to a mau man in polygamy or in the praet practice ice of unlawful cohabitation to reform the language i of the statute is if any male pe person co cohabits babits with more than one woman he be shad be deemed guilty etc the polygamous relations commencing to live ve with two or more women as wives is not indispensable to the crime such relations relation ts may have been formed the unlawful association may have com coin fenced long lone before the laws defining the crime took effect as in the case ut of the united states vs angus M cannon affirmed by the supreme court of the united states cases may be cite I 1 holding that the same grand jury can indict but tor for one offense where tile the crime may be a continuing one in some of these a portion of the time of each of two counts of the indictment was covered by both in others it ap feared that the prosecuting witness was attempting to use the court to grat gratify his ma malice ice or for or pecuniary jain wn barr ar asing assing anti and oppressing the eten dant with it a multiplicity ot of prosecutions and a d accumulated costs and lines la in other cases the legislature in describing the crime had indicated an intention to include the acts con sti the inception ot of the offense as an essential element to it the point under discussion was decided adversely to the appellants views in tile the case or of the united states v snow pacific reporter vol 9 I 1 no 9 page to i 1 the same effect are the cases corn com vs I 1 connors mass 35 morey vs corn com mass it is also insisted that it was t and oppressive and greatly to the disadvantage of the defendant to put him upon trial on both counts batore the same jury that in considering the question of his guilt upon one they would be influenced by the evidence under the other but bat the courts have held that in a trial on a single charge evidence tending to prove the defendants relations to the women before and after the time mentioned in the indictment should go to the jury to be considered with tho the evidence lor and against him between the dates named jamea fur for the purpose of aiding them in determining ter the character of his association between the dates that it is proper ger for tile the jury to know his feelings dispositions and hafits towards them before and after the time of the offense as much as during the time lime that such facts shed light upon the conduct complained of so that defendant was placed at no disadvantage by being tried on both charges before the same jury the court sentenced the defendant to distinct punishments on each count to this the appellant objected and excepted and now assigns the same as error erroa the respondent relies on section 1024 S when there are several charges against any person for the same act or transaction or fur two pr more transactions connected together or tor for two or more acts or transactions of the same class of crimes or offenses which may be properly joined instead of having several indictments the whole may be joined in one indictment in separate counts and if two or more indictment sare found in such case the court may order them to be consolidated soli dated this section provides that when two or more crimes are charged of the same class which can be properly joined they may max be included in the same bame indictment in in separate counts and aad in such case tf A two or more indictments are found the court may order them consolidated while lethis this section may authorize different de scrip tio n s of the same offense I 1 in separate counts of tile the same indictment in order to prevent a fatal variance the intent to anth authorize ant bonze orize the joinder of separate crimes in different counts of the same indictment is apparent such joinder prevents the trouble dela delay y and ana cost of more moie t than h a a one trial the delay cost and harrass ment of several prosecutions on a number of indictments are often almost as oppressive as the punishment puni imposed the object of uniting offenses of the same class or of ordering the consolidation of different indictments is not to prevent the punishment ot of the offender for more than one offense bat such would bethe be the effect it punishment could not be inflicted tin on the separate counts the same class of conduct constitutes the two misdemeanors charged in this indictment and they could be properly united tile the provisions of the section quoted are not new so far as it relates to 10 misdemeanors two or more misdemeanors growing out of separate and distinct transactions may according to tile the doctrine which appears to prevail everywhere be joined in tile the same indictment when embraced in indifferent different counts it is not easy to say precisely what is the limit ot of this doctrine except that the judge will exercise at least his supervision to the extent of protecting the prisoner from being prejudiced in his rights of defense etere a statute makes it a misdemeanor to sell intoxicating liquor without license and imposes a fine for each sale several counts for distinct sales may be joined in one indictment and the accumulated penalty imposed bishop on criminal procedure 2 ed see sec lewis martin vs the people 76 ills the law as stated by bishop is the prevailing doctrine in england and ot of those baates in this country where a different rule is not provided by statute the ancient common law was otherwise and a few recent cases in this country may be found to tile the contrary the leading case so holding iebba is aba 1 lof of the people ex rel tweed vs lyscombe N Y in that case the relation was tried upon an indictment containing distinct counts and convicted on he was sentenced to twelve successive full terms of imprisonment of one year each and the flues fines of each upon other counts to additional lines amounting in all to the appellate mate court held that he be could not 9 be sentenced to but one count this was a hard bard case and furnishes a precedent contrary to the weight of authority tho rity where there are several charges in different counts of an indictment against the same person for the same act or transaction but one punishment could be imposed but bat where the actions or transactions are different and constitute different offenses and belong to the same class and may be properly joined separate punishments may be ina imposed posed on each count the case of ex parts parte hibbs 9 federal reporter of the date of march 16 watch is a carefully cons considered I 1 ered decision by judge deady expressly rules this point it was also argued that the trial of the defendant for two offenses before the same jury deprived him of the benefit of three peremptory challenges it is conceded that the defendant was not deprived of an challenge tor for implied or actual bias or jorfor for any sufficient cause lie he had three peremptory challenges in selecting a jury of 12 men it a separate trial on each count had been given him he would have had no more it is true he would have had the right to challenge six men in selecting two juries jurie s but then there would have been but three challenges for each fifteen jurors and the defendent defend ont was as likely to secure twelve good jurors with three per challenges in one trial tria as twenty four with six challenges in two trials the end sought by peremptory cha challenges ages as well as for cause is intelligent tell igent ent fair and impartial jurors J brors tie the appe appellant ilant also objects object ito to Phillip gri grill I 1 as a juror because it was alleged that the evidence did not show that he w as a citizen C of the united it does doe s 11 ot appear from the record that the d defendant efen dant exhausted hn peremptory challenges chal enges nor does it appear that the record contains all the evidence touching the citizenship of the juror the evidence heard by the court satisfied it that the juror was a citizen we must therefore presume that the he evidence heard was sufficient to justify the finding of court we find no error record and therefore affirm the judgment of the court below boreman A J concurs powers A J concurs |