Show ILLEGALLY imprisoned on june 11 a decision was ren rendered derea in the cue case of peter barton now held in the penitentiary on a conviction 0 f adultery after a conviction of unlawful cohabitation for the same time the opinion of the court refusing to issue a writ of habeas corpus is as follows supreme court territory y of utah in the matter of the petition of peter barton for a writ of habeas corpus J the case as stated in the petition is that the petitioner was on the day of ap april rt 1888 twice indicted by the 2 gra grand nd jury of the third district court that both indictments were found and presented at the same time that the names endorsed on each eatch as witnesses were the same that one charged him with the crime 0 of adultery alleged to have been committed i with one mary beesley that 4 the other charged him wa with the crime of unlawful cohabitation alleged to have been committed by living with mary barton and mary beesley as his wives that the indictment for adultery alleged the rime crime to have been C committed om ml eted w within th the period of time covered by the indictment for unlawful laNful tion that on the ath day of february 1889 tile the petitioner was arraign arraigned ea before the court on the charge of unlawful cohabitation and pleaded guilty that thereupon the court sup suspended eded sentence upon that charge that dimmed immediately lately thereafter he was arraigned upon the charge of adultery and plead guilty and thereupon he was sentenced by the court to imprisonment for the term of fifteen months upon that charge and that he Is 18 now imprisoned in the penitentiary ther thereon eOll the rhe petitioner avers wit that the mary beesley named in the two indictments is one and the same I 1 person the petitioner alle alleges that the imprisonment is illegal and void A iu in this that the court had no jurisdiction to pass judgment against your petitioner on the indictment for adultery for the reason that the off offense ellse charged is ia the same as that contained and set out in the action indictment and records for unlawful cohabitation that the prosecution and conviction for unlawful cohabitation barred any further prosecution or proceedings and that the court had no jurisdiction or power to take any action upon the indictment for adultery 1 the petition concludes with a prayer that a writ of habeas corpus issue to the end that he maybe may be discharged from I 1 imprisonment rn the district attorney has hah appeared upon this application and denies the petitioners petition ers right to the writ it will readily be seen from the foregoing statement that the petitioner was regularly indicted convicted evicted and sentenced for the prime crime of adultery and that there is no illegality appearing upon the record thereof but that the petitioner is seeking to impeach or destroy this record by alleging and showing the existence of another made in another case and which is entirely separate and distinct and which if the facts set out in his petition are true might have constituted a good defense to the charge of adultery if interposed by plea of former conviction in the trial court and the question presented to us is s whether the defense of a former conviction upon a prior prosecution can be made available for the first time on an application for a writ of habeas corpus in this court after conviction on plea of guilty without pleading it or in any way calling it to the attention of the trial court the code of criminal procedure of this territory provides as follows sec there are arc a four fou r kinds of pleas to an indictment A plea of I 1 III 1 I guilty 2 not guilty 3 A tomer former judgment of conviction or acquittal of the offense charged which may be pleaded either vit with h or without the plea of not guilty 4 once in jeopardy sec prescribes the form of each of these pleas see sec all matters of fact tending to establish a defense other than that specified in the third subdivision of sec maybe given in evidence under the plea of not guilty sec an issue of fact arises 1 I upon a plea of not guilty upon a plea of former conviction or acquittal of the same of ense a 3 upon a plea of 0 once in jeopardy 2 see sec issues of fact must be tried by jury ariless a trial by jury he waived in criminal brina inal cases not amounting to felony by the consent of both parties expressed in open courland court cour tand and entered in its minutes 2 compiled laws 1888 pp ap w and alad these provisions substantially follow the common law the rhe plan of f former conviction raises an issue K of fact and is for trial ry oy jury 1 Archi balds criminal pl PI and pr notel note 1 the petition relies upon u n the cases of snow 9 U S and nielsen lately decided by the supreme court of the united states in the nielsen case nielsen had been convicted of unlawful cohabitation and sentenced to the penitentiary aher Arter his term of imprisonment had expired he was agai again n prosecuted upon a charge of adultery alleged to have been committed within the period covered by the charge of unlawful cohabitation and with one of the same women with whom he was charged to have unlawfully unlawful lly cohabited to the charge of adultery he pleaded the fori mer conviction setting up the record full fully yand and averring the identity of the two charges to this plea the government demurred the demurrer was sustained by the court and he was put upon trial on his plea of not guilty before the jury and was convicted and sentenced the supreme court of the united states held that the charge of adultery was included in the charge of unlawful cohabitation and that the demurrer to his plea of former conviction was improperly sustained and that he should be discharged his former conviction was a part of the record of his conviction for adultery he had plead it the demurrer to his plea admitted its truth the same as though it had been fuu fou nd by the verdict of a jury ury A fact had thus been established which cleared haimof him of the charge and the court had no jurisdiction to proceed further but nevertheless he was put upon a trial of his plea of not guilty and convicted and sentenced all this appeared in ia the record of his conviction ti on in the snow case supra the record was the same the petitioner claimed that the court had no jurisdiction over the offense of adultery charged against him because as he avers he had bad been convicted of the same identical offense before and he cites the constitution ution of the united states to the effect that no perse n shall be twice put in jeopardy the courts however are the properly constituted tribunals to determine the question as to whether a party has onee once been in j jeopardy ardy and the district court in which the petitioner was convicted had jurisdiction to determine that question it is equally clear that courts have no jurisdiction tp to imprison n a person unless he has committed ted some crime but they have jurisdiction to determine the fact as to cheth whet lier er the cri crime has been committed and to proceed with the inquiry until it is determined if it is found that no crime ims has been committed the jurisdiction of the court ceases but if it has been then the court has jurisdiction to inflict the punishment church on habeas corpus pus sections exports bogana sawyer when a person is charged with a crime before a court having baving jurisdiction to determine his guilt or innocence no cence and he claims immunity by breason of a former conviction or acquittal the burden is upon him to ta plead if in answer to the charge and to establish it by his evidence and if lid he does not do so it is waived bishops criminal procedure see sec 1 whartons Wh artons criminal law see sec et seq ex parte kau finan 78 79 mo MG ez ex parte bogart 2 sawyer state vs webb 74 mo the question of a former conviction was a matter of defense and was a question for the determination of the court having jurisdiction to try the charge it involves involve a question of fact the identity of the offen offenses charged the existence and priority ot of the record relied upon and on habeas corpus this court cannot cottry try such an issue FO parte bogart supra state vs webb supra church on habeas corpus see sec it is also claimed that the judg ment was void because it was passed in less than six hours after the plea of guilty was entered and was therefore in violation of the statute ali the e copy of the record attached to the petition shows that the petitioner was arraigned and pleaded guilty and requests that sentence be now passed upon him on the same day sentence was imposed the alq and sentence are separate en tries on the journal it Is elaimy claimed that this shows that less than six hours intervened between bet weeti the ale and sentence we do not think this is a necessary inference but if it was it would be b but a mere irregularity which could not be reviewed on habeas corpus hurd on habeas corpus et seq ex parte smith 2 nev an order should be entered denying the application we concur zane C J judd J JT T J anderson associate justice this closes the way to the release of mr barton from his unlawful imprisonment unless upon a showing of the facts president harrison chooses to grant a pardon the maughn case which was waa set or that day and postponed till the dext next is within the scope of the ruling and he will also be kept JA in prison 1 r I son unless there should be relief from from another source than the courts |