Show CONVICTED lydia spencer breaks her silence and acknowledges to bo be married to rudger clawson who thereupon is found guilty of polygamy but admitted to bail ball till the day of sentence NOT 3rd ard the overwhelming majority of those who went early to the tile third district court saturday mor morning ailing to avoid the crowd and secure a neat within or without the rail according to sex social standi ngor the altitude of their self esteem arria arrived just in time to find the places they had bad mentally reserved already occupied and anathematized themselves for not coming earlier before 10 every chair table and bench was taken many ladies ladie a being included in the th e crowd and some standing up this of itself I 1 is IS sufficient says the deseret De eret news to show the size and quality of odthe the congregation gre gation the counsel fur for both sides the tile jurors and the defendant were ell in their places before judge zane arrived he being for some reason a liitle little less punctual Dunc than usual at 20 minutes past 10 k the judge mado made his appearance and ab about out the same time lydia spencer 1 the recalcitrant witness walked into the courtroom court room she was sad eyed and pale aad and wore an expression which gave token of a night of gony agony her appearance awakened a feeling of sympathy in the breasts cfall of all capable offe of feeling elin 9 it while others with those instincts ilk which human beings sometimes tome iome timea times manifest sat gloating upon the picture of helpless help lesi distress call mia alies lydia spencer ran rang 9 nut out the of air mr dickson the prosecuting attorney the lady croie from where she sat and slid walked up and took the biln wllis eis choir before anything Y t bin further was done mr J az L I 1 rawlins ai na her attorney addressed the court and asked the privilege before final judgment was posed passed in thia 1 11 come to tb that t of f beina being be heard rd in mias mi is spencers behalf his is request t was granted and he resumed hia his seat judge zane to witness are Arc you willing to be sworn this morning spencer yes the increased interest and elongated necks of the spectators were now painful to behold the witness lifted tier her hand and assented to the oath which ml fell like the patter of rain from the practised practiced lips of the clerk mr dickson ills spencer are you married IV witness atness in lit a low tone yes or lr to whom 1 I to clawson when were you married in lit 1883 11 where 01 in this city A pause during which the arc prosecuting ae counsel consult air mr dickson mat mon month th wa was it witness 1 11 I dont remember Q it was in the year 1883 A ye yei sir air Q and in this city and county 1 A ye Y es sir 11 I 1 mr r dickol dickson abat nl at q all I 1 m judge zane zatie to witness you lyou are disch discharged argeo from custody the lady left the stand and soon after passed out of the room many of the crowd following her and aud straining their eyes to get a glimpse of her tier before she vanished she waa was escorted home by bishop HB Cl clawson attson father falber of the defendant mr dickson now announced that the prosecution submitted their case without argument and rested here with the did understanding that the other aide side had no evidence to offer oner mr bennett arose and said it was mutually agreed that the case be submitted without argument or evidence for the defense but he lie added that they desired to hand in a bill of instructions v which it would require la A little time to prepare and baked asked that a respite be given until two lor for that purpose the other side assented with the lation that they be allowed to sec ee the instructions before they were handed in this being agreed to the judge granted the time asked for and ordered that the ourt court take recess until 2 pm the tile jury were charged cli arged as usual against holding converse con outside ot their own number etc and then committed to thes the care of two bailiffs bailiff s who conducted them to the jury room it was now ball half past ten a m n the throng moved slowly out of the building impeded at intervals by little knots of gossipers Ros sipers busily discussing the outcome of the mornings session 2 p rn A few minutes after sifter the above lour hour chief justice zane took bis his ecat seat andorne an and dorde ordered red tile jury roll to be called all present air bennett elated stated that on further consideration the had bad decided le C it led to present no request for in the judge asked the prosecution prosecution rose cution if they had bad any request to inake and on receiving a negative answer proceeded to charge lit irge the jury aa as follows gentlemen of the jury I 1 will read to you the cha charge rg e the court charges you thit the laws of the tile united states of america in force in the territory of utah declare that every person who has a wife li vine living and marries another is guilty of polygamy goly polygamy gamy and that the fi first count of the indictment upon it the 1 defendant states that on the day of august 1882 rudger clawson the defendant married florence ann Dinwood ev with whom b he a is detill till livine living as a wife and fram whom he lias has not been divorced and that afterwards on tile first day Is of june julie 1883 he be married lydia spencer in the third judicial district the laws odthe of the united states also leclare that any male person who cohabits with ith more than one woman is guilty of a misdemeanor ancor and the tile second coult in the same s ae me indictment charges that on the first day of june 1883 and on divers other days between that day and the of august 1884 the defendant cohabited with florence ann clawson and elvdia lydia spencer treating them as his wives the court charges you that cohabitation in a irgal legal sense as applied in this case the living together ofa of a man and woman as husband and wife or under such circumstances as induce a reasonable belief of the practice of sexual intercourse to both points of the indictment the defendant lias has plead not g guilty and the law presumes him innocent until the evidence shows his guilt beyond a reasonable doubt the court further cli charges arges you that it is not necessary that the evidence ahall show the marriages mentioned actually occurred on the particular days named in the indictment gentlemen you are the sole judges of the credibility of the witnesses of the weight ht of the evidence and odthe of the tile fleig bet question on of the facts material t the issues you should diligently and in impartially consider all the evidence be before or e you and reach such conclusions and beliefs with respect to the guilt or innocence of the defendant on both counts of the indictment as you may be able to in your best judgment the court charges you as to the form of your if you find the defendant guilty on both counts of the indictment the term ferm of your verdict will be abo jury find the defendant guilty on both counts of the tile indictment isyou if you find defew dant guilty on one count of the indictment and not on the other you will in your verdict name the tile count upon which you find him guilty if yon you find alif defendant not guilty you will wil I 1 pay ay that the jury find the d defendant C fen d ant not guilty the jury then therl retired mr bennett asking anu and receiving vs gion siou from the tile court to make an tin exception to the instructions at any time in the future it was about 15 minute minutes after 2 when the jury went out seventeen later they refi defiled led into the presence of the court and resuming their seats in the box were ask asked ed by the judge if they h had ad agreed upon a verdict the foreman mr bower an answered we have and handed a paper to the clerk who read aloud froin from it the follo following wink 9 in the district court for the tile third judicial district of utah territory county of salt lake the united states vs rudder claw son eon poly polygamy gainy we the jurors it im paneled in the above case find the defendant efen dant audger clawson guilty ou on both counts of the indictment as charged in the indictment W 11 11 Fo foreman ieman october 25 1684 the jurors were asked if this was their verdict and on affirming euch such to be the case were discharged mr dickson now made a motion that the defendant be committed for safekeeping safe bate keeping to the custody of the barahal Ma rahal pending judgment upon the verdict and that he be not admitted to bail an argument ensued and the court at first sustained the motion but reconsidered the matter and further argument en sued of which the follow following Is is an ali authentic corrected report mr F S richarda richardi arose and addressed the court his speech which we give a verbatim was delivered with tal ing force with rapidity and with great impressiveness its effect upon the judge may be seen by what follows mr F S richards said if your honor please although it appears to be a little irregular to speak upon this matter now after your honor has intimated tiu what your decision would be I 1 trust I 1 will be pardoned for baying saying a few words on this subject the district attorney admits that no occasion lias ilan arisen since he lie has ilia been in office forthe fertile determination of alii question stion I 1 have not until recently been in regular practice at this bar foursome for some years past but I 1 am informed by gentlemen here who know as I 1 believe that it has been the universal practice of this court own to allow a defendant to go on abail bail not only after a verdict and before judgment but pending an iipp appeal eal and I 1 know that in all prosecutions for bigamy and polygamy that huva have occurred in tins this territory territory the de defendant in each c case ase has been allowed to go on bail it DM has never been denied while we did not want to enter into the merits of this question and discuss to day the right of the defendant to bail pending the appeal believing that the exercise your you r him bail ball until the tile judgment was sufficient at this time 1 I feel it my dit duty 1 I 1 in E I 1 justice to my client to refer arny briefly tob to his leright right in this regard your honor will remember that a at abort 1 ort lime time ago I 1 in I 1 1 a discus jou in regard to the const construction r action of a territorial statute in c connection with the tile act of congress Con gresa known as the poland law I 1 had bad the honor to call y your our atten attention tio n to our peculiar situation in thi this territory with reference to tho the legislative power of congress and that of the territorial legislature congress ress the paramount power has said f that in incises incases cases of this kind writs of error shall lie to the supreme court of the united states no person then can be conclusively presumed to he be mill guilty if he lie takes the proper means to prosecute his appeal until his case has been passed upon by that court of last lat resort and we insist here aej e toda todar to dar da r that it is a right which this defendant has to go on bail ball during the time his appeal is pending the prosecuting officer inkes the broa broad admission that we are entitled to a stay of execution during this appeal hut but he lie also says that the defendant should be held in custody in the meantime Is not this a distinction without a difre difference reace Is it not something that is going to borka double hard hardship slAp on the defendant it is a rule that never has been admitted in this court it is a practice that has never been followed in this territory and I 1 insist if your honor please that it never should become the practice what A man convicted but having tho the right of appeal m must remain in custody two three or five yeara years bendine pe his appeal imprisoned but not nerving serving out ins his sentence may be for three years and his appeal may be pending two years at the end of the latter term the sentence is affirmed what is the result the tile man is I 1 in n custody two years waiting to find out whether he has been legally convicted and if so he lie has to I 1 orve three years more in other words word by appeal appealing ing he gets bye five years incarceration in the penitentiary tent iary when if lie had not taken the appeal he would only have bad had three years imprisonment on the other hand if the case should bo be reversed and the man shown to be innocent he would have served two or three years in the penitentiary without a legal conviction now if your honor please this act of congress giving to tho the defendant the right of appeal should be so con as not to prove a shadow merey merely ly but a substance it should carry with it the right to immunity from imprisonment if lie can give bail ball until that court has las passed upon tho tile question of his guilt or innocence or as to the regularity of his trial and conviction in thia this view of the case we insist that it would not only be a ajust just and proper exercise exercise of discretion to permit the defendant to go on bail ball but w we a believe it to bo be his constitutional right because the act of congress giving him hirn the right of appeal is to this territory what a constitution is to a state mr varian lel me male maka one sug suz to you the act of congress giving an appeal does no not t give an appeal from this court to the supreme court of the territory and if your construct construction on be th the true one the tile q F I 1 it rj am oil t alin I 1 10 territory for the supreme court of the united states and the laws of the territory roust must govern the preliminary matters of procedure incident to the appeal to the supreme court j of the territory ifft if it be true that you are entitled ai a matter of right to i ba bail pending riding the tile appeal given by the boland and bill that question can only arise when ilia case leaves the su SUN premo preme court orthis of this territory this act 9 gives ives the defendant no rights that be he does not possess under tinder the I 1 statutes of the territory that question will have to be determined by the supreme court orn or a justice of thle supreme court mr richards continued I 1 have heard that idea advanced before in this court when a man had been sentenced to death and in the teeth of this statute which says there shall be an in appeal allowed in murder t ase rase this very ar argument unbent was adduced that because he fild had not succeeded in ob laining a certificate of probable cause from the judge who tried the case or from one ol 01 the other justices of the tile supreme court liis his life lire might be taken pending the appeal 1 I say if it your your honor please that the tile legislature of the territory of utah had no right to enact any provision which would r have that effect and the ilia seer section which lias has been referred to here which requires a certificate of probable causo cause must be construed trued to not apply to cases of that cha character the same 8 section in california provides that in ill cases of murder the tile party shall be entitled to a stay of execution pending the appeal as a matter of right without ut any certificate of probable can cause a I 1 esy y that tile courts should construe our statutes stat so as to stay the execution in cases where parties have been sentenced to death and in cases of bigamy or polygamy where the defendant defendants are enil entitled to appeal by act of congress I 1 say tile courts must give it such suet a construction as Ls will preserve to defendants in such cases all the rights incident to their appe appeal alg and slid the legislature must not so e presumed mohave to have intended to render nugatory any provision ef the act of congress for it lias hai not the power to do PO so mr Dickson Dick sou Ild not the supreme court of the territory in the llope |