Show THE NIELSEN CASE received a copy of the brief of jeremiah franklin frankila S richards and samuel shella sheila barger counsel for the appellant in the case of hans nielsen before the supreme court of the united states it covers forty five pages of a law pamphlet and is therefore too voluminous for reproduction in a dally daily paper we will therefore epitomize its contents as briefly as consistent with perspicuity but we will first give a short history of the case hans hana nielsen was on the of november 1888 in the first district court convicted of unlawful cohabitation and sentenced to imprisonment for three months and a fine of one hundred dol ars an ani costs he served his term and was subsequently placed on trial for adultery the indictments for both offenses having been found on the same evidence before the same grand jury on the september 1888 the offense in each case was alleged to have been committed with the same person the indictment for unlawful cohabitation named the time as from the october 1886 1885 to the may 1888 and that for adultery the of may 1888 but the indictment averred that the defendant had continued to t cohabit with his plural wife without intermission rals sion till the september 1888 that is the date of the two indictments the latter offense was therefore included in the time of the former the defendant on the second trial pleaded a former conviction and claimed that the two of fences were one and indivisible and that having been convicted for unlawful cohabitation he could not now be convicted of adultery with the same person during the continuance of the cohabitation for which he had been already punished the prose cuteon demurred to the plea and the court sustained the demurrer the defendant was convicted of the second offence offense and on the of march 1889 sentenced beed to one hundred bundred and twenty five days imvris A petition for a writ of habeas carpus was presented to the first lil district strict court at provo which refused to issue the writ an ap therefore there fore taken to the supreme court of the united states under section nine of the organic act the brief assigns as errors of the court below let the court erred in refusing to issue the writ and in holding that upon the facts stated in the petition the petitioner was not entitled to be discharged diac barged 2nd and the court erred in holding that the adultery charged was not embraced in the offence offense of unlawful cohabitation for which the petitioner had been convicted the chief question involved is this Is the charge of adultery as appears in this record for which the appellant is now imprisoned such that it is in law a part paa of the same offence offense as the unlawful cohabitation for which he was previously convicted and punished if so the second sentence is void because the prisoner is being punished twice for the same offense ofie nse the argument claims first that fw when hen the two indictments are for matters arising out of the same transaction there can be but one conviction in support of this a mass of authorities ties is presented chief justice cockburn says it is A fundamental rule of law that out of the same facts a series ot charges shall not be preferred in the caw case of state vs cooper now new jersey law the supreme court ruled that a defendant cannot be convicted and an d punished for two distinct felonies growing out of the same identical act in jackson vs state and lanpher vs state 14 indiana the court held that the state cannot split up one crime and prosecute it in parts the prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime in state vs graffenread ld 9 baxter chief justice waite is quoted as laying down the principle that tha t where a criminal act has been committed every part of which may be alleged in a single count of the indictment and proved under it the cut ad cannot be splat into several dk dewind crimes and a separate ind indictment ct sustained on each and whenever there has been a conviction on one part it will operate as a bar on any subsequent proceedings as to the residue la in state vs commissioners 2 murphey the supreme court said the notion of rendering crimes like matter infinitely divisible is repugnant to the spirit and policy of the law and ought not to be countenanced the second claim of the argument is it is not necessary that the of fence in each indictment should be the same in name if the transaction is the same the federal constitution and an all the state constitutions provide that no one shall be twice put in jeopardy of life and limb for the same offense and a number of aties are cited to show that the phrase the same offense signifies signia signi 8 the same act or omission and not the same offense in name only I 1 the ewe case of hall v state 38 georgia in which the appellant had bad been indicted for an assault with intent to commit murder and was discharged and afterwards was io in dieter dieted for aggravated riot and pleaded former acquittal the appellate court said can the state tato put a party on trial the tb second time for the same criminal act after he has been acquitted by changing the name of the tion if it can then the constitutional protection does not amount to much the effort here is to 6 avoid the provision of the constitution by changing the name of the offense 21 other decisions show that it ia p ft a universally admitted rule at mon law that a conviction of manslaughter would bar an for murder based upon the same act ac of homicide 11 blackstone says the fact prosecuted is the sanle same itt 10 both though the offense differ coloring the third point is 1 I if f the conviction is for the transaction there can be no furta conviction for any part of it among the authorities cited f 00 this point are these in dempsey Vs i commonwealth the supreme court wa ruled that a party indicted jr seduction and acquitted may plead pi such acquittal in bar of a abw s quent indictment for f founded on the same act ac k and the th record will be a oom complete p k de defend f 60 in sanders vs state the court areld conviction for nw that a former treatment by chaining the app lant to a plow was a bar to colv 1 tion for assault end and batte battery V beca both charges grew out of uw the jaw transaction 11 the fourth claim of the ar gum JE is if the conviction is for fora a part P of fur the transaction there can be no whole ther conviction either for the tn or for any part of the in the case of the rhe people vs afy 1 supreme court held that an acquittal for robbery was a bar to indictment for larceny where the property alleged to have been taken was the same lu iu state vs colgate 31 kansas the court ruled that the commission of a single wrongful act can furnish the subject matter or foundation of only one criminal 11 in georgia it has been held that I 1 one prosecution will bar another when over the proof shows the second case ase to be the same transaction with the first q the fourth claim is this if the adultery occurred du during t dg the we unlawful cohabitation which is covered by the conviction it was a part art of and involved in such cohabitation a citation and a conviction for the rafter bars a prosecution for adultery it is shown that the authorities establish conclusively that the statute against unlawful cohabitation oplies alone to cases where the relation of husband and wife exists elther either actually or ostensibly and that it Is a transaction which is a of facts 11 one of which facts fit sexual intercourse and that if involved ived in or incident to the transition of which a defendant has bepin a convicted he has been guilty of aa act which if committed sep the transaction would be de indictable that act is embraced sst 4 cannot be made fin the subject of prosecution ike th decisions of the court in the cannon and snow cases are cited in aport of this and of the proposition thai t the whole colipy of the law is against gamst dividing or segregating what happened opened Ppe ned under one transaction in to separate parate prosecutions the record is then reviewed to shaw w that the principles of cases ev eted apply to this case am and that al gh the time named for the com Od of adultery was placed one dw y after the last date named as the ame atte of the unlawful cohabitation athe yet tho latter offense wad waa claimed nl 14 the indictment to have continued ato the date of the indictment and tta included the date of the alleged dottery altery doi ol tery TO punish for the two ofos bs then would be another kind of 81 segregation re gation one offense being eded in the other the condic 11 of one bars bare conviction of the ather i 88 that seem to convey a con ary y doctrine are here invests d and shown to be of a arut character to the one at efte e AW ateo the difference is pointed between former acquittal and bokker have a dif ferent effect an acquittal for the lesser offense might admit of an indictment for the greater but a conviction bars it because a necessary part of what the conviction covered the jurisdiction of the court is then argued and established and the counsel say in conclusion in concluding this brief we repeat that the theory of this prosecution is contrary to the policy of th the f 3 law this is a criminal statute to which no rule of construction or principle of enforcement can be applied that is not applied to other criminal statutes we would not be understood as suggesting a possibility that it will be dealt with in any different manner from other criminal statutes multiplication of punishments ish ments is not the cirace policy of the law and we cannot believe eve that it was the intention of congress to a man by fine and imprisonment for living with a woman three years as his wife and then to add to that punishment or make it possible to add to it hundreds of convictions vict ions for sexual intercourse occurring during the period of and being a part of the cohabitation the punishment for which would be an aggregate of penal servitude that would require centuries of time to discharge judge wilson argued the case before the supreme court of the united states on friday last and was waa followed by solicitor general jenks who denied the jurisdiction of the court today P F S 3 richards esq closed the argument and it is hoped that an early decision will be rendered as it is of of great importance to the people and the courts of utah it to is a matter of congratulation that the cue case has been in such thoroughly competent hands if the court is not swayed by the desire which prompted the special legislation against utah but will be governed by its own decisions and the precedents of centuries this new attempt to punish men several times for the same offense win will fall into the same pit where lies the dead and gone infamy known as segregation 12 |