Show ail impressive argument TV morrow hio court 0 the will deliver Us the united stales vs blui s Ni clun from alit court of cutuli jule alie case mas lait at washington and we take pleat in alie following parotid and aliu ii acs idaile to alie supreme cairl in ln linof 0 llie int and ili l hy lion kibb arias nil atio lay oi abill last kiy th courton the ath jay of alio grand jury of hie judicial alie 0 tle 0 unlawful tbt nielen Ni flen hiir ere on one oath and one as to the alleged and alie 0 alie alie from october 15 laba to september 27 it appeared that hie petitioner liaa diciro tune continuously and colial cited nna livina and caroline kielsen tho danied in the indictment aal liis altea and eliut during the continuance ol 01 raid cohabitation to wit on lie day of may lie had anler with caroline instead of in dic tin the continuous froan the day of oc lober till the day of september the jury an for unlawful cohabitation ilnick the liine prior to abo of lay as as abdat the bame time pre frentel an for adultery al lagud to leave been committed with on the eaid of binler the decision of this court in alia snow case there could be but one iud let moot found or the offense offence ol 01 un l infill coha aaion committed prior to the find iii of tiie indictment know bog athla tle and trend jary sought to avoid the effect of the Je of this court based upon the constitutional provision that a person shall not bo twice put in jeopardy jao pardy for the game of fence by for one of the acts embraced in aaion and calling the supposed of fridi by au ollier naine to wit adultery the reason alio llio jury could not more thun one for un aas ix dauee the air mo ft aa a continuous one bod au llie 0 it waa composed om posed were or involved in the action and together constituted the one of fence it was in the discretion of lie prosecutor aud grand jury to charko the cohabitation as having continued during the anole period frona october 1888 or in the of the to carve as large an out of alie transaction as they but laving once cared they nol cut again juiia bebok abe law could the grand jury by charging the cohabitation as fx tending only to the irth day of may take an act chich occurred on the day fol louing but formed apart of that io i o and make it alie subject of another proM LUtion in ol 01 lier alien it hafl impossible for the jury to make n second nonence out of nil the acts of the defendant defenda at which the cohabitation after the because it had al ready carved an offense offence out if the transaction could it select one act and by calling the adultery instead 0 cohabitation find another valid indictment this in the question involved in the cage we have ft plain attempt by the name of the alleged allence ol lence to da what alm court has said cannot be do mure than OIK offense offence out of a continuous cohabitation fruh procedure is repugnant to the fundamental principles of law and justice the authorities are uniform upon alie point that the ajmo transaction may Bent IBO or mure indictable aspects or phases under different vot In stanie by the same act a man may commit and burglary or arson and murder or and uttering a arged or an airnault air fault with intent to n jinjr and aggravated riot arriet and disturbing a religious meeting or fornication furni cation and or running a hon and betting oa a horce race but in the language of the BU arcine court 0 alabama in llie case loore vs slate alie state elects li roush its officers to prosecute a crisino in one of ila it cannot afterwards prose anto ali fadine criminal act under an oilier name I 1 repeat that utter hearing the evidence it was in the discretion of alie jury to either indict the petitioner fur cohabitation during the entire tima from october 15 1885 to or for any part of that to indict him or adultery Iu an indictment was found for either of these offen cea no matter what period of time it covered nor alio name gien to the offense offence in the a conviction un that became a bar to any other prosecution under any name or any act or series of acta cotol that transaction this doctrine is abundantly by atio great weight of and as was w as eaid by the supreme court of georga in the case of holt vs if it were not so the provision of the constitution which declares that no pernon eliell anica lie put in jeopardy would be a bruere shadow and delusion ahe follon lne cases defered ref ered to in briel illustrate alie principle wo in clearly establish the proposition that only one conviction can be biad and one penalty imposed or a dinglo pinglo which has been defined by sir stevena in his work on to be a croup 0 acts eo connected together a to be referred to by a single legal name in this cafe un lanful cohabitation lg the nameon the transaction A conviction for arson bars a prosecution or murder of the person bbate vs cooper 13 N J law A conviction or burglary bara a prosecution ur robbery when lie transaction kol K rh B bbate 14 georgia 8 A or stealing a boreo bri t or a ad dlo and bridle because lie lion for any part of a crime hara any furl her prow ution bacsid the whole or A part of the earns tinia ja akson vs state 1 t ind A conviction or the by assaulting martin hill hara it tor an hernan hill because a part of lie earbie transaction tran kotlo va locklin 60 vermont CM A conviction for burglary intent to commit larceny bara a prosecution for daneny it being ona transaction which cannot be echt into bev eral dittin t clineb tat g graaf emried en ried 0 baxter W A conviction a caming bara prosecution prote cution of tho anine leeping table and inducing a person to bet upon it because ahey are co aits and oue transaction klinkle vs conomon Uana A conviction or beeping a disorder ly houm bars any other prosecution ur keeping a disorderly house at auy prior to tha the indict robat V B VB 1 craach C C A conviction or being beher bara or abny single eale within the period named in the charro of being a common seller but oot KO an acquittal cominos wealth 9 hudson U tray 11 A conviction or altering and aul buo ouo forged check bars any other prosecution as to other forged or uttered att the same time state VB 41 iowa A conviction for keeping a gaming bouse bara any other prosecution for keeping the same houi o before the were filed state a Li udley 14 ind A conviction for being a common peller merges all acta of bale up to hie hie complaint bbate s nutem A conviction or on an indictment hoiting alorth all the elements the ot uttering a forged instrument aurs lurs u lor a looped in because the same trang action though not alie baune connane conn vs stale 11 tex app an or an awault with in tout to lun riler bars a for alie offense offence 0 ilot in alie language langu ace of the court HIB batata cannot put a party on trial u second time for alio act if he haa been acquitted by liang int ilia name of the of fence itola v i state 38 3 a A conviction convict iun for an and battery bars a for an assault th intent to commit murder because it was one transaction and alie prosecutor could cut only once bilcox vs state C lee tenn A conviction for stealing houstons Hous tons cattle bars a pro for stealing floods cattle if they were talen at one time and the transaction waa a single ony wright 8 bbate am A con vinion for ft riot bars a prosecution for disturbing a religious meeting state va Tow 2 on an acquittal of seduction bars a or fornication and bastardy dinkey s commonwealth 7 ienn state A conviction for breach of the peace bars a prosecution or an assault and battery growing the same transaction commonwealth vs hawkins 11 bush A conviction lor assault and battery bara a prosecution for riot because involved la the eama transaction wininger Wini uger vs state 13 ind A conviction tor running a horse along a public road bars a prosecution for betting on the horse race because a part ol 01 the same transaction fiddler vs state 7 humph A conviction for larceny bars prosecution for robbery when a part of the same state vs lewis 2 the recovery of one penalty would be a bar to all for acts ot keeping a faro table committed previous to alie issuing of alie warrant dixon vs corporation ol 01 washington A conviction tor assault with intent to commit rape bairs a prosecution tor rape baale shepard 7 conn 54 A conviction tor robbery bars a prosecution for larceny when the property alleged to have been taken is the same people VB 17 wt A conviction for arson in burning a mill prosecution for burning books of account which were in abu mill at the time it was burned stale vs colgate 31 kansas A single wrongful act can furnish the subject matter or foundation in only prosecution and one proa elution will bar another whenever the roo shows the second case to be the banie transaction with the brut joberta VB state 14 ua S it is a fundamental rule of law that out of the earne facts a berida of be pre ferreI chief justice cockburn Coch burn in hegira VP it ile foregoing cases are cited to illustrate the principle upon which this case rests but in some respects the case is ui generis and it must be determined by a construction of the acts of congress under these tiong in construing this legislation in cases that have boon before thiis court your honors have taken into the pe cul ar conditions existing in utah which led to the enactment ol 01 these laws and have said in substance that alie cohabitation prohibited by thief law was in ilia marital relA liou actual or ostensible this being so the of conics i in passing those two statutes is olmous hie vet of against unlawful cohabitation prohibited the living or buelling duelling du elling together as husband and wife whether attended with or the act of 1837 against adultery if it have any application at all to the of men with their plural wives prohibited act of inter conraad between the carlies par lies whether attended with living or doelling elling together or not the first act was construed by this court as intended to break up the polygamous the other if it applies to leopla et all must be construed aa intended to prevent sexual intercourse between the birtiee alter they have ceased to live atud cohabit together there is no evidence of any intention on tha part of congress to punish as separate of fences acts of sexual intercourse occurring during the continuance of the unlawful cohabitation the ait ai t creating crea tinK the of adultery waa passed after his court had held that sexual intercourse was not a element of cohabitation and the legislative purpose evidently v as after breaking up the polygamous by the one act to prevent a continuance of sexual relations be kneen alie parties by the other this is the only construction aliat liat will give fall force and enact to both statutes and at the same time avoid the inhuman policy of creating aej punishing multitude ot separate cea growing out of the same transaction or out of one continuous of fence this construction st leaves unimpaired the coo securities for the rights of be individual eliut it is contended by the government because this court held that sexual intercourse was not an indispensable pen sable element of unlawful cohabitation that such intercourse ia not a the offense offence of cohabitation and that a conviction for the latter would not bar prosecution cution for the former As this court has held that the of fance of unlawful cohabitation applies alone to cases here the plural marriage relation exibee either actually or ostensibly and where the parties liia together as husband and wife intercourse must M presumed from a continuous living together in bubli a relation in such jb case is an obvious purpose or intent to commit the act and while it may not actually occur if it does occur it be comes an inherent part of the cohabitation one of the group of facts edw in into that this caan differs very from the allua ration by opposing counsel of a drunken man murder and when prosecuted pleading n bar a former conviction for drunkenness claiming that the murder wag a nece Miary incident to the drunkenness the difference the cases is obvious is no presumption either of law or fact that a drunken man will commit murder but it faill not be defied that there is a strong presumption both 0 law and fact that a man while cohabiting with efto women as hia wires will have intercourse with them alita court baidin cannons US and in snowa case US that sexual intercourse was not an indin element of unlawful cohabitation but it did not eay nor lias aay court eald that lotar cauree tahei placa between ih bartles luring tho continuance of an nil I 1 not form art of the on the contrary while proof that it alid not occur during the ia no defence to alie yet aroot aliat it did ocrus is one of the highest evidences of the unlawful lAwful cohabitation and is admitted aa aiichi against the accused thi is alie iova rule iu the utah coneta this court has eaid that the of few e of cohabiting with more than one woman may ho hy the man by living in it a banne house ft ill two women whom ha had theretofore acknowledged aa his wives and ealine at their respective tables and holdin ff them out to tho world by his language or conduct or aa liis be anay not occupy the same bed or sleep in alie isumu room with chuin thuin or either 0 or have sexual intercourse with of bliem the offense offence ol 01 cohabitation iu the benee of thia statute ia committed it hero ia aliv dwell iii together as husband nud wife tim ia inherently ft continuous continuo ua of feefe having duration and not an offense offence consisting consia ting of an lao act while tins court liaa said that the state of facts constitutes unlawful cohabitation it hai not aard that lucli cohabitation might not ox abt on some other state 0 aarts farts nor lias it eaid that any of the acts enumerated are indispensably necessary to lie of unlawful in the sanae liou hebold is ot a cei essary element nor is the introduction of the plural wife by the defendant nor alie same table nor alie of oilier evidences of alie relation feces sary elements but are all acts going to proe alie unlawful relationship and conduct and for a part of it no one nor any number nor any particular kind of acts are necessary elem nta in the sense of being of the essence of lie crime it is only necessary to show a sufficient number of a certain character of acts to make out the ot Tence it is one of the becu liari tied of a conti naine odense of this character that no matter how low many nor bow long continued the distinguishing acts of the of fence they form but a single indivisible of fence to live in the fame house with alie plural wife outwardly occupying the elation of husband and wile is sufficient to constitute the of fence K the parties occupy the same bed this buc adds another fact to the proof it doos not make another arime la the language of this court the offense offence 0 unlawful cohabitation is committed if there is a living or dwelling together as husband and wife every act or fact that goes to make up such living or together it be living in the name house or eating at the same table or holding the women out as wiver or occupying the same beds with them or any other act that goes to make up the constitutes a part of the transaction if a otate of facts exists which constitutes this of fence the gravity of the offense offence is not increased by any other additional fact included in it jf the parties have lived and dwelt together as husband and wife without sexual intercourse ter course an ense has been corn gilted milted if they haohao sexual intercourse during such living and dwelling together it was by virtue of this relationship or blaim of marriage and it becomes a part of the transaction of cohabitation it does not change the character of the of fence because it was as much unlawful cohabitation without as with the element of sexual intercourse but if that fact edisto it becomes a part of and eo involved in the cohabitation that the government |