Show THE MAUGHAN DECISION on june 29 the territorial supreme court reu rendered dered a decision refusing the petition of wm win H maughan for release from illegal imprisonment the opinion given by judge anderson is as follows the petitioner alleges that he is a prisoner prisoner tin in the custody of frank H dyer dyer united states marshal for the territory of utah in the penitentiary of said territory for a criminal offense against the laws of the united states to wit adultery that such confinement is by virtue girlue of a judgment warrant find and the proceeding of record including three indictments against him his arraignment thereon and pleas thereto respectively and convictions thereon upon his pleas ot of guilty thereto A copy of the record is in each case attached to the I 1 petition he alleges that under ta the judgment in two of the cases he has been imprisoned in the penitentiary for more than six months slid and has paid fines fides and costs adjudged against him therein that he is now imprisoned under the other one of the F judgments rendered against him and that such imprisonment is illegal for the reason that the court had no jurisdiction to pass judgment against him in said case that the two judgments which he has satisfied by suffering the imprisonment and paying the fines and costs adjudged against him therein were both for the crime of unlawful cohabitation and that he is now imprisoned under the judgment of the court rendered against him on the indictment for adultery that the offense is the same for which which he has suffered punishment under the other indictments and that the rachel kachel woodward mentioned in the indictment for adultery and in one of the indictments for unlawful cohabitation is one and the same person and that he is being punished twice for the same off offense eDse that the court had no jurisdiction to render judgment against him on his plea of guilty to the indictment for adultery and that the same is void and he prays to be discharged from imprisonment A writ of habeas corpus was therefore issued in the case and the petitioner produced in court by the united states marshal from the exhibits attached to the petition it appears that on the ath day ay of january 1886 petitioner was indicted in the district court of the 6 rot judicial district for the crime of unlawful cohabitation alleged to have been committed between au gust 1 1884 and december 10 1885 by living and cohabiting during said period of time with barbara maughan elizabth elizabeth elizab th hull bardner maughan Maug hau maggie nibley mary hale maughan rachel woodward maughan and frances nibley maughan as his wives this indictment is designated designate 1 as no the indictment was as found upon the testimony of C L lowe and thomas grant november p titi was arraigned and pleaded e not guilty november 23 1888 petitioner changed his plea of not guilty to that ot of guilty january 3 1889 petitioner was sentenced need by the court to pay a fine of and 34 costs and be imprisoned in the penitentiary six months the imprisonment rison ment to commence to run from F rom said date it also appears that on the dakof day of november 1888 the petitioner was indicted in said district court forth for the crime of unlawful cohabitation with barbara Mau maughan glian elizabeth maughan margaret maughan mary Mau maughan Maug glian ban rachel woodward and maughn by living and cohabiting with said women as his wives from the day of january 1886 to tr the day of november 1888 this indictment is designated a as no 1890 and was found upon the testimony of the petitioner alone who voluntarily appeared before the grand jury fury at his own request and gave testimony on the same day he appeared in open court was arraigned and pleaded guilty to the indictment january 3rd ard 1889 petitioner was sentenced by the court to pay a fine of and 31 costs and ve be imprisoned d in the penitentiary six months the t h e imprisonment to run from said d date ate it further appears that petitioner was also indicted indict d in said court on the day of november 1888 for the crime of adul adultery tary alleged to have been committed on the day of october 1887 with one rachel woodward that sald said indictment was designated as no 1891 and was found on the testimony of joseph howell that on said november 23 petitioner was arraigned and pleaded gililaty to the indictment and on an the ad day of january 1889 was wis sentenced by the court to be imprisoned in the penitentiary two years and six months and pay the costs of prosecution amounting to 29 from the foregoing it will be seen that petitioner was regularly indicted convicted and sentenced for the crime of adultery upon his plea of guilty made in open court there is no illegality appearing anywhere in the record of the case it does not appear in which of the three cases the plea of guilty was first entered nor in which case judgment was first rendered it does not appear that the rachel woodward with whom petitioner tit ioner committed adultery on the day of october 1887 was the same rachel woodward with whom he unlawfully cohabited rom the day of january 1886 to november 1888 if such was the fact and it haq had been properly pleaded and on the trial it would have constituted a good defense to the indictment for adultery but this court cannot on habeas corpus hear evidence nor determine the questions from anything outside of this case counsel for petitioner insists that the records attached to his petition show that the adultery was committed with one of the same women to wit richel bichel woodward with whom he had unlawfully cohabited because of the ide identity n ti ty of the name in the indictment numbered 1890 and 1891 and cites whar tons criminal evidence see sec and state vs kelsoe 76 mo these authorities go no further than to lay down the doctrine that identity of name raises a presumption more or less strong according to circumstance identity wharton says identity of name is not by itself when the name is common 3 and when it is borne by several persons in the same circle of society sufficient to sustain a conclusion of identity of person the inference however rises in strength if circumstances indicating the improbability of there being two persons of the same name at the same place at the same time and when there is no proof that there is any other person bearing the name names therefore with other cir cumB cum stances are facts from which identity can be presumed in the case of the states ag vs kelsoe supra eupra the defendant was indicted for burglary under the name of charles kelsoe alias mcca mccarty arty at the trial lie testified in his own behalf and for the purpose of effecting his credibility the state introduced the record of the conviction of charles kelsoe alias mccarty of grand larceny and this was claimed to be error but the court held that identity of such name was sufficient to raise a presumption of identity of persons and was therefore proper evidence to go to the jury butin but in this case even the presumption of identity of person from identity of name does not nat appear from the indictment nor any part of the record ai in the adultery case but only appears io in the record of another case and herice hence cannot be considered in determining the question now presented in none of the cases cited by council for petitioner nor in in any we have been able to find has it been held that un on facts not in some the record of the case could be considered it was the duty of petitioner if he relied for defense upon the fact of a former conviction to have pleaded it in the district instead of pleading it for the first time on habeas corpus in this court in the case of ex parte barton decided decide dat at this term the same principle was involved in that case barton was indicted for unlawful cohabitation with one mary bec beesley sley and also for adultery committed with mary beesley during the time covered by the indictment both indictments were found by the same grand abry upon the same evidence and both indictments were presented at the same time barton pleaded guilty to both indictments on the same day the court suspended sentence in the case of unlawful cohabitation and sentenced him to imprisonment on the charge of adultery and he presented his petition to this court asling asking to be discharged on habeas co corpus 8 from imprisonment because the district court had no jurisdiction to sentence him in the adultery case after his conviction on the plea of guilty to the charge of unlawful I 1 cohabitation in denying him the relief prayed for henderson J speaking for the CO court urt used the following language I 1 when a person is charged with a crime before a court having jurisdiction to determine his guilt or innocence and he claims immunity by reason of a former conviction or acquittal the burden is upon him to plead it in answer to the charge and establish it by his evidence and if he does not do so it is waived bishops criminal procedure see sec wharton whartons Wh artons Is criminal law sec et seq ex parte kaufman 72 mo elpa ree bogart 2 sawyer state vs webb 74 mo the question of a former conviction was a matter of defense and was a question for determination of the court havin having 11 jurisdiction to try the charge it involves an issue of fact the identity of the offenses charged the ex relied upon and on habeas corpus this cannot try such au an issue the role here laid down isdell is decisive 0 of the e case and we see no reason to change or modify it whatever merit there may be in the petitioners petition ers case it is a proper subject for executive consideration but this court can afford him no relief the prayer of the petitioner is denied and an order will be entered accordingly we concur ZANE C J HENDERSON A J |