Show THE CASE following is the argument of hon P F S richards Richarl ds in the habeas corpus case before the supreme court of the united states april 22 1889 may it please the court on the day of september 1888 the grand jury of the first judicial district of of the territory of utah investigated vesti gated the charge of unlawful cohabitation against the petitioner hans nielsen four witnesses were examined on one oath and one examination as to the alleged offense and the conduct of the accused during the period from october to september 27 1888 it appeared that the petitioner had during the entire time continuously and without intermission cohabited with anna levna nielsen and aid caroline Nielsen the women named in the indictment as his wives and that during the continuance of said cohabitation to wit on the day of may 1888 he had sexual intercourse with caroline carolina instead of indicting inducting Indic ting the petitioner for a continuous cohabitation from the day of october 1885 till the day of september 1888 the jury presented an indictment for unlawful chhabi tion during the time prior to the day of may 1888 and at the same time presented an indictment for adultery alleged to have been committed with caroline on the said day of may 1888 under the decision of this court in the snow case there could be but one indictment found for the offense of unlawful cohabitation committed prior to the finding of the indictment knowing this the prosecutor and the grand jury sought to avoid the effect of the decision of this court based upon the constitutional provision that a person shall not be twice put in jeopardy for the same offense by indict ing him for one of the acts embraced in the cohabitation and calling the supposed offense by another name to wit adultery the reason the grand jury could not find more than one ind ag indictment cament for unlawful cohabitation was because the offense was a continuous one and all the acts of which it was composed were embraced or involved in the transaction and together constituted the one offense it was in the discretion of the prosecutor and grand jur jury y to charge the cohabitation as aa having continued during the whole period horn octher acu Oct ber 1886 1885 till september 1888 or in the language of the authorities to carve gs as large an offense out of the transaction as they could but having once carved they could not cut again this being the law could the grand jury by charging the cohabitation as extending only to the day of may take an act act which occurred on the day following but formed a part of w that cohabitation and make it the subject of another prosecution in other words when it was impossible for the grand jury to make a second offense out of all the acts of the defendant which constituted the cohabitation after the of may 1888 because it lt had already carved an offense out of the transaction could it select one of those acts and by calling the offense adultery instead of unlawful cohabitation find another valid indictment this is the exact question involved in the case we have a manifest attempt by changing the name of the alleged offense to do what this court has said cannot be done make more than one offense out of a cont continuous lutious cohabitation such procedure is repugnant to the fundamental principles of law jaw and j justice ustice the authorities are uniform upon the point that the same transaction may present two or more indictable aspects or phases under different names for instance by the same continuous act a man may commit robbery and burglar arson and murder or swindling and uttering a forged Instrument or as an assault with intent to murder and aggravated agrava riot or riot and bistu disturbing a r religious I 1 meeting or fornication and seduction or running a horse and betting on a horse race but in the laef aj guage of the supreme court of alabama in the coe case of moore v state if the state elects through its authorized zed officers to prosecute a mine crime in one of its phases or aspects it cannot afterwards prosecute the same criminal act under another name I 1 repeat that after hearing the evidence it was in the discretion of the grand jury ury to either indict the petitioner for cohabitation during the entire time from october 1886 1885 to september 1888 or for any part of that time or to indict him for adultery but when an in was found for either of these offenses offen no matter what period of time it covered nor the name given to the offense in the indictment a conviction on that charge became a bar to an adif other prosecution under an any name for any act or series of sew acts growing out of that transaction this doctrine is abundantly sustained by the great weight of authority and as was said by the sur preme court of georgia in the case of holt v state if it were not so 0 the provision provision of the constitution which declares that n no ad person r n shw shall be twice put in jeopardy would be a mere shadow and and delusion the following cases referred to in our brief illustrate the principle we invoke and clearly establish the proposition that only one co conviction anvic can be had and one penalty w posed for a single transaction whid has been defined by mr mir Stev enSi in his work on evidence to be a group of facts so connected tog together ethier as to be referred to by a single legal beg name 11 in this case unlawful c habitation is the name of the trans tiOn A conviction for arson bars bare a prosecution for of the person burned ened state v cooper 13 N J aw w A conviction for burglary bars a prosecution ution for robbery when the atme transaction roberts v state 14 ga 8 A conviction for stealing a alonse bars a prosecution for steal ad iua a saddle and bridle because the prosecution for any part of a agle crime bars any further prosecution based upon the whole or a put of the same crime jackson state 14 4 ind A conviction for disturbing the by assaulting martin hill oare bars a prosecution for an assault on aerman merman hill because a part af f the ane transaction state v locklin 69 vt A conviction for burglary with hagent to commit larceny bars a prosecution pose rOSe cution cation for larceny it ic being one ans action which cannot be split into atto several distinct crimes state v 9 baxter A conviction for setting up a aing table bars prosecution of the atme oae person for keeping such a table and inducing a person to bet upon it because they are operating cooperating co acta and one transaction hinkle commonwealth 4 dana A conviction for keef keeping ing a bisor WT dorly house bars bafs any 0 ther her won for beeping a disorderly house ahe at 4 SUY any time prior to the finding of e indictment U S v burch I 1 craach raach C C A conviction for being a common seller bars prosecution for any single w within the period named in the charge barge of being a common seller but t not lot so with an acquittal com nwe alth v hudson 14 grayl 1 A conviction for uttering and pub ming hing one forged check bars any alay other prosecution as to other checks ed or uttered at the same time ate v 41 iowa A conviction for keeping a gaming aube bars any other prosecution for aping the same house before the formations were filed state v lindley andley in dley 14 ind A conviction for being a com an seller merges all acts of we sale ta ato P to the filing of the complaint e v nutt 28 vt A conviction for swindling on an setting forth all the ele meats constituting the offense of ut teifilo dg ar a forged instrument bars a oae le cutton cution for uttering a forged in i hent because the same ap tion though not the same offense nomine Hi v state 11 teck ea app I 1 aa kaa acquittal for an assault with t tent to murder bars a prosecution i 0 the offense of aggravated riot use in the language of the war the state cannot put a party 04 trial a second time for the same actie he has been acquitted f chan hig the name of the of lense olt 0 y v state 38 ga bm A A conviction for an assault and tery y bars a prosecution for an as it with intent to commit murder murd e r the se it was waa one on transaction a and nd prosecutor could cut only wilcox v state 6 lee tenn A conviction for stealing hous tons cattle bars a prosecution for stealing floyd Is cattle if they were taken at one time and the transaction was a single one wright v state 17 tex app A conviction for riot bars a prosecution for disturbing a religious meeting state v townsends Town sends 2 harrington an acquittal of seduction bars a prosecution for fornication and bastardy dinkey v commonwealth 17 penn state A conviction for breach of the peace bars bare a prosecution for assault and battery growing out of the same transaction commonwealth v hawkins 11 bush A conviction for assault and battery bus bars a prosecution for rot riot because involved in the same transaction wininger v state 13 ind A conviction for running a horse along a public road bars a prosecution for betting on the horse race beci because tuse a part of the same transaction fiddler v state 7 humph A conviction for larceny bars ban prosecution for robbery when a part of the same transaction state v lewis 2 hawks 98 the recovery ocono of one penalty would be a bar to all prosecutions for acts of keeping afaro a faro table e committed previous to the issuing of the warrant dixon v corporation of washington 4 cranch C C A conviction for assault with intent to commit rape bars a prosecution for rape state v shepard 7 conn 54 A conviction for robbery bars al a prosecution for larceny when the proper property tV alleged to have heen been taken is the same people v mcgowan 17 wend A conviction for arson in burning a mill hare bars a prosecution for burning books of account which were in the mill at the time it was burned state v colgate 31 kansas A single wrongful act can furnish the subject matter or foundation to only one prosecution and one prosecution will bar another whenever the proof shows the second ease case to be the same transaction with the first 11 roberts v state 14 ga 8 I 1 I 1 it is a fundamental rule of law that out of the same facts a series of 0 charges shall not lie be pre preferred ferrod 11 chief justice cockburn in regina begina v elrington 9 cox C C 86 the foregoing cases are cited to illustrate the principle upon which this case rests but in some respects the case is sui generis generi 8 and it must be determined by a construction of the acts of congress under which these prosecutions were instituted in construing this legislation in cases that have been before this court your honors have taken into consideration the peculiar cahar conditions existing in utah which led to the enactment of these laws and have said in substance that the cohabitation prohibited by ba this law was I 1 in n the marital relation actual or ostensible this being sol so the purpose af congress in passing these two statutes is obvious the act of 1882 against unlawful cohabitation prohibited the living or dwelling together as husband and wife whether attended with sexual intercourse or not while the act of 1887 against adultery if it has hai any application at all to the intercourse of men with their plural wives prohibited acts of sexual intercourse ter course between the parties whether attended with living or dwelling together or not the first act was construed by this court as intended to break up the polygamous household the other if it applies to these people at all must be construed as intended to prevent sexual intercourse between the parties after they have ceased to live and cohabit together there is no evidence of any intention on the part of congress to punish as separate offenses acts of sexual intercourse occurring oc currin during d un ang the continuance of the unlawful u awful cohabitation the act creating the offense of adultery was passed after this court had held that sexual intercourse was not a necessary element of cohabitation and the legislative purpose evidently was after breaking up the fee polygamous households by the one act to prevent a continuance of sexual relations between the parties by the other this is the only construction that will give full force and effect to bothI statutes and nd at the same time avoid the inh inhuman policy of creating and punishing a multitude multitud multi e of separate offenses growing butof the same transaction or out of on one continuous w offense this construction leaves unimpaired the constitutional securities for the personal rights of the individual but it is contended by the government ern ment bemuse because this court held that sexual intercourse was not an indispensable element of unlawful cohabitation that such intercourse is not dot a part of the offense of cohabitation and that a conviction for the latter would not bar a prosecution for the former As this court has held that the offense of unlawful cohabitation applies alone to cases where the plural marriage relation lation sp exists either c actually or ostensibly and ana where the parties live together as husband and wife sexual intercourse mastbe must be presumed from a continuous living together in such a relation in such a case there is an obvious purpose or intent to commit the act and while it may not actually occur if it does occur it becomes an inherent part of the cohabitation one of the group of facts entering into that transaction this case differs very materially from the illustration suggested by opposing counsel of a drunken man committing murler and when prosecuted pleading in bar a former conviction for drunkenness claiming that the murder was a nece necessary incident to the drunkenness the dif difference terence between the is obvious there is no presumption either of law or fact that a drunken man will commit murder but it will w I 1 11 not be denied d that th a t there th e re is a strong presumption both of law and fact that a man while cohabiting with two women as his wives will have sexual intercourse with them lem this court said in cannons ease case 5 N U S sanata Sand and in ta snows case 17 S that sexual intercourse was not an indispensable element of u unlawful n cohabitation but it did not say nor has any court said that when sexual intercourse takes place between the parties during the continuance ti nuance of an unlawful cohabitation such intercourse does not form part of the cohabitation on the contrary while proof that it did not occur during the cohabitation is no defense to the charge yet proof that it did occur is one of the highest evidences of the unlawful cohabitation and is admitted as such against the accuse accused cL this is the invariable rule in the utah courts this court has said that the offense of cohabiting with more than one wo woman man maybe may be committed by the man by living in in the same house with two women whom he had theretofore acknowledged ed d as his wives and batin eating at their r respect respective ive tables and ho holding ng them out to the world by his language or conduct or both as his wives though he may not occupy the same bed or sleep in the same room with wife them or either of them or have sexual intercourse with eltheron either elthe of them the offense of cohabitation in the sense of this statute is committed if there is a living or dwelling together as a husband and wife this alvi is inherently a continuous offense having duration and not an offense consisting of an isolated act while this court has said that the foregoing state of facts constitutes unlawful cohabitation it has not said that such cohabitation might not exist on some other state of facts nor has it said that any of the acts enumerated are indispensably necessary to constitute the offense of unlawful cohabitation residence in the same household is not a necessary element nor is the introduction of the plural wife by the defendant nor eating at the same table nor the multitude of other evidences of the relation necessary |