Show constitutional CONSTITUTION Alt RIGHTS BIGHTS maintained MORMON DEFENDED NIMi THE SUPREME COURT OF THE UNITED IX IN THE skow OASES CASES A bishaf HU Ri shaf hark MAY MAT IT TIME COVET in the discharge ot ota a solemn duty I 1 stood in this auguet presence at an early day of the present term and asked tor for a construction of section three of the edmunds act in the nime name of ft a whole people who were abre hir harassed assed by the toot extraordinary and conflicting judicial interpretations made by thi the courts I 1 appealed to your Honors for sl a removal of the doubts and a dissipation of the mysteries by which this statute had bad been enveloped the decision of this court in that cause the abb cannon case was most conclusive so tar as the fate of that particular defendant was concerned but it did not provide against future complications andoe constructions once more I 1 appear at this exalted forum upon a similar mission I 1 fear that I 1 can add no new reasons to those given on the former occasion why this supreme tribunal should grant grairt to the devoted people of utah a fixed definition fini tion of this incomprehensible law lean only pray this court in its merciful justice to remove the stumbling blocks the suares snares and pitfalls from the pathway of my people and to shed light along the way which many must travel in norderto order to conform their conduct to the requirements of this law if your honors will do 40 this if you will but show what the law is that it may be understood and obeyed whatever may be the individual fate of lorenzo snow the plaintiff in error he be will not feel that his jeopardy and privation have been in vain mr snow on se separate arate trials was convicted in the Wi district court of the first judicial district of utah Teril territory tory on three indictments for unlawful cohabitation and the judgments each for the highest punish ment allowed by law were af affirmed firmen by the supreme court of the territory and he be is now imprisoned in execution of the same the indictments are found under section 3 8 of chapter 47 of an act ol of congress approved march 1882 which reads as follows follow sec A that if any male person in it a territory or other place over which the united states have exclusive jurisdiction hereafter cohabits with more than one woman he shall be deemed guilty ot of a misdemeanor and on conviction thereof shall be punished by a line fine of not more than three hundred dollars or by imprisonment for not more than six months or by both said punishments punishment ir in the discretion of the court one indictment charged cohabitation with seven women as wives in 1882 another charged cohabitation with the same women in ift ISM 1884 and the third charged cohabitation with the same women during the eleven first months of 1885 the trials occurred in the inverse order of the time covered by the indictments commencing with the indictment for 1885 and the numbers in this court do not correspond with the order ot of trial the questions in the first case tried involve the construction and effect of the section of the act of congress above quoted and what constitutes an offense offence under it also the evidence admissible mio sible to prove it and the manner in which the questions involved were submitted to the jury the questions arise out of objections to the sufficiency of the evidence under said statute objections and exceptions to the admission and exclusion of evidence and to instructions given to the jury and requests for instructions refused the other cases involve the same quest questions lons arising iti in the same way and each of them also involves two additional questions of g general t import ance anceto to wit 1st ast where the alleged cohabitation ims has been continuous and at the same place and with the same women can cau the cohabitation be divided into cepar separate of fences marked only by an arbitrary division of the time this question arises on the ruling ot of the court sustaining a demurrer to pleas odthe of the first conviction and of the lir arst stAnd and second convictions in bar to indictments in the second and t third cases respectively 1 ad Is the frence offence of unlawful cohabitation with more than one woman committed by cohabiting with a woman not a lawful wife and at atthe the same time having a lawful wife living with whom there is no cohabitation and if there is a presumption of cohabitation with the lawful wife is it indisputable and incapable of being rebutted this question arises on an instruction to the jury jary in the second and third cases which I 1 I 1 will read when I 1 reach that point in my argument our first assignment of error is in sufficiency of the evidence to support the conviction the whole record shows an utter absence of evidence of cohabitation with guv woman except the wife minnie and discloses the fact that the defend ant lived exclusively with her and made his home at her house bouse during the entire tle time charged in the indictment the te marriages with the several wives 4 had f V 11 20 11 wa at t different periods t the he first adelinem Ad elines occurring more t than ban forty years ago and the last M minnies In niels fifteen years ago each ol 01 of t the he wives lived in her own home conveyed to her by deed from the defendant dated in 1874 adeline and phoebe occupied one house which was conveyed to them in parts and nd had ho fo lived jor for ten years their house was from a third of a mile to half a mile distant from that in which mr snow lived with minnie mary dwelt in a separate house bouse aud and had so lived tor for ten years or more her house bouse was about half a mile from minnies sarah harriet eleanor and minnie had resided in the adobe house se billed the old homestead each in ner her own part and the defendant had bad also lived there until some time in 1881 or 1882 when he and minnie moved into the brick house bouse on the same block where he lived exclusively until his indictment since minnies removal f from rom the homstead homestead old sarah harriet and eleanor with their families have occupied it each living in thy jbv part conveyed to her the old homestead fronts east on main street which runs north and south is about twenty feet from the street and from the gate in front of the house a path leads northerly and westerly passing partly around the east and north sides of the house bouse to the northwest corner of it and continuing thence northerly through a gate in the fence between the old homestead premises and the brick house premises owned and occupied by minnie the brick house is on an east and west street fronts north and is 60 to 70 yards from the old homestead but on the same block your honors can see from the diagram indicating where these parties lived and I 1 will now endeavor to tell you yon what the evidence discloses as to how they lived there is no evidence that the defendant ever saw either adeline or phoebe during the time charged in the india indictments he lived with Minme Minnie in the brick house bouse the evidence to show cohabitation with sarah harriet mar mary y and eleanor or one of then them Is in substance this he called on mary and her family as any other gentleman friend four or five times during the eleven months of 1885 and remained from half a minute to fiala half an hour these calls were in the daytime and he had not eaten or slept in the house nor been there at night bight this leaves the bocc occupants of the old homestead sarah harriet and eleanor he called two or three times on sarah and her family and remained half an hour possibly an hour hoar during the day did not eat or sleep in the house and was not there in the evening or at night he was generally occupied during these calls in business conversations with alviras a son who was assistant manager in the operative cooperative co store of which the defendant was superintendent perin but mr snow also made inquiries inq unies about the welfare ot the family lie he had bad called on harriet and her family two or three times to inquire concerning the children and to learn of their and on business with F frank ra a son who was engaged in mer can cantile ti le pursuits he stayed a few fe w minutes each time and sat down from half a minute to perhaps half an hour he called on eleanor and her family two or three times irr iff 1885 remaining from ten to fifteen minutes each time but did not eat or sleep there this his is the whole evidence to show cohabitation in 1885 and there was less evidence of it in 1883 and IM 1881 there was no room kept for him in any house except minnies there he be ate slept and stayed when at home his mail and business papers came there his personal clothing was kept and cared for there and no indication existed of a home or habitation at any other place not only was it the tact tac t that he lived exclusively at the brisk house with minute minnie but it was also the understanding and repute la is tile tho neighborhood that thai lie be bad so lived I 1 confidently submit that such a state stale of facts cannot constitute a criminal cohabitation with more than one woman there was in tact fact and in law no cohabitation with any woman but minnie and therefore the evidence is insufficient to sustain the convie conviction tion I 1 have in discussing this point dwelt more particularly upon the evidence in the case first tried because it is the strongest EA of the three cases against the defendant mr justice harlan there is evidence that he claimed the women as his wives is there not mr richards yes sir he admitted that they were his wives and that he be had bad claimed them as such I 1 shall consider the effect of that admission in my next point but certainly it alone could not constitute cohabitation mr justice hatlan carlaw t what do you say cohabitation consists of what does cohabitation mean mr richards I 1 say precisely what your honors said in the cannon case that cohabitation means living together as husband and wife and to violate this statute a man must so live with more than one woman As my illustrious colleague will have h ave occasion to refer to the evidence during his bis argument I 1 will pass on to the second assignment of error we contend that the court erred in admitting on the trial for cohabitation in 1885 evidence bendin tending to show eq cohabitation with the sime same women in in 1883 and 1884 and prior thereto when indictments for 1883 and 1884 1881 were pending before the court the evidence so admitted extends through the entire case and includes a comparison ol of the manner of li it the year 1885 with the manner of living prior thereto in objecting to the evidence the attention of the court was called to the indictments tor for 1883 and 1884 and the court held that it would take judicial notice of them and not require them to be offered in support of the objection the evidence was not only admitted but the judge charged the jury as follows if there is evidence that the defendant hd had married the women had been living with them as his wives before the offen of fence pe it may be considered by the jury as ad adding in r weight to an any circumstances proven pointing to unlawful cohabitation durin during the time the offence offense is charged the statute under which mr snow was indicted has been construed to mean a cohabitation with mare more than one woman as wives or under the c claim aim or color of a marriage relation there were two things for the prosecutor to prove the claim or colorow a marriage relation and the cohabits coh abita ta tiou tion the latter being the body of the of fence the former only relating to the status of the person committing it it is not disputed that as to such status of tile the person evidence would be proper covering any number of years though separate indictments were pending and that such evidence violate no rule of law the plaintiff plaint iff in error at the opening of the trial admitted the status and the holding out of the women as wives in the broadest terms as this quotation f from roin the record shows the defendant by his counsel admitted before the court and ury ary that he had been married to all the women named in the indictment the last marriage e being in 1871 and that he be never levei was divorced from either cither and ever since the respective marriages has claimed each of said women as his wife but did not admit that he had bad cohabited with more than one of them during any part of the time charged in the indictment 11 this reduced the issue to proof 0 0 f of the cohabitation during the tiar time 1 charged h arged s and gave the prosecutor no excuse for offe offering f i evidence of prior cohabitation to 8 show h the status of the parties or the holding out as wives the general rule that to aid in convicting a person of one offense the commission of another though a like offense cannot be shown to defendants prejudice is well settled mr bishop in hia work on criminal procedure sections 1120 and 1123 says on v a trial for a particular crime the state cannot aid the proofs against the defendant by showing I 1 him to ave have committed another crime No teven on cross examination can his bis case be prejudiced with the jury by testimony to any irrelevant guilt ay I 1 it and this is id the settled rule 0 of law as shown by the authorities cited in our brief the exceptions to the rule rate do not relate to the proof of the fact or act constituting sti the offense but only to the questions of knowledge purpose wallce malice or intent where suca huings characterize the act and are necessary to make it criminal or to enhance ltd its criminality the cases cited by op opposing P 08 counsel go 0 o to this extent but no further and in his argument on another araua branch of the case he has conceded the very point for which we are here contending after quoting liberally from the authorities he says from rom this practice it is clearly to be deduced that there might be any num ber berof of indictments against a party for either of the offenses named but that no one indictment could be supported by evi evidence denee which has been introduced under any of thre others if counsel has stated the law correctly upon this point and ne lie certainly has then it necessarily follows that there was error in admitting this evidence to prove the only fact in issue and in giving instructions to the jury that they might consider confide r it the u usual sual test as to whether one action or prosecution is a bar to another Is whether the same evidence would prove or tend to prove each case here there w were ere separate indictments for 1883 and 1884 for the same acts which were proved to procure procure a con conviction diction for 1885 ar mr justice miller suppose there was bu one indictment that for 1885 mr Itic bards then thea I 1 say the pr prosecution 09 might have introduced evidence ot of what occurred in 1883 and 1884 because there was but one offence offense charged but I 1 most emphatically insist that a person cannot legally be convicted of three separate of fences upon the same evi evidence deace introduced in three separate trials both law and justice forbid such a thing and yet it was done in these cases on the trial for 1885 thi tha court admitted evidence of what occurred in 1883 and 1884 on the trial for 1884 1881 the evidence as to 1883 and 1884 was used the second time to procure a conviction and on the trial for 1883 the same evidence as to what occurred in that year was used the third time mr justice field it may be that the same testimony covers the three years mr air richards it is utterly incomprehensible to me under the authorities as I 1 read them and the principles of law as I 1 understand them that the same testimony can be used three times to convict a person of three distinct offenses but I 1 pass on to the next point in my brief the court erred in excluding evidence that |