| Show I POWERS ON POLYGAMY I The New Associate Justice Places I Himself on Kecord I An Opinion in the Simpson Case Sustaining Sus-taining Judge Zane I r Validity of Consensual Marriage or Polygamy Could Laugh at I the Law The opinion of Judge 0 AY Powers I concurred in by Judges Zane and Bore man in the case of the United States respondent vs Thomas Simpson appellant appel-lant was delivered this morning in the Supreme Court Judge Powers read the decision aloud in a plain clear manner The defendant was indicted for polygamy po-lygamy tried convicted and sentenced to the Penitentiary The substantial averments of the indictment were that that he intermarried with one Emma Everett while at the same time his lawful law-ful wife Hannah Powell Simpson was living The Court charged the jury that if the evidence convinced them beyond a reasonable doubt that the defendant married Emma Everett as charged and that at the same time he had a lawful wife living then they should find a verdict ver-dict of guilty provided that the jury further fur-ther found that the first marriage was lawful The jury were instructed that to establish the fact of marriage it was NOT NECESSARY TO PRODUCE A MARRIAGE CERTIFICATE Or anv record evidence Neither need eye witnesses of the ceremony be sworn that marriage may be proven like any otherfact by the deliberate declarations or admissionsof the defendant but that the defendant could not be convicted unless it was found beyond a reasonable doubt that he was guilty as charged in the indictment I in-dictment The jury were also informed that they were the sole judges of the credibility of the witnesses and of the weight to be given to the testimony The defendant urges that the court erred in charging the jury that they could infer in-fer marriage from the deliberate statements state-ments or admission of the defendant None of the testimony is brought up into the record we must therefore presume pre-sume that there was evidence to sustain the charge that Hannah Powell Simpson Simp-son actually existed and that the marriage mar-riage took place in this Territory In order to have arrived at a verdict of guilty under the charge as given the jury must have been convinced beyond a reasonable doubt that a lawful marriage had been entered into between this woman and the defendant In this Territory there is no law regulating regu-lating marriage No form or ceremony is required and no record of marriage is kept Marriage is left as it was at the common law and A CONSENSUAL MARRIAGE IS IN ALL RESPECTS RE-SPECTS VALID There need be no witnesses present If the parties are competent to contract all that is essential is a present agreement The marriage is complete when there is a full free and mutual consent by parties capable of contracting although not followed fol-lowed by cohabitation Hero some ten citations to cases were made from different authorities Cohabitation is but one of the many incidents to the marriage relation It is not essential to it See Murphy vs Ramsey 114 U S 42 Under our law a marriage depends solely upon the mutual consent of the contracting parties They may enter into the marriage relation secretly and the fact may be unknown to all save the manand woman As was said on the argument a couple may meet on the highway at any time in the day or night and there contract a valid marriage mar-riage Whether it tends to good morals to leave the matter thus loose and completely com-pletely at the will of the parties it is not for us to discuss That is A MATTER FOR THE LEGISLATURE We have to take the law as we find it No particular form or ceremony being essential andno witnesses being required the question that arises is how shall the fact of marriage be proven Surely it is not necessary to produce a marriage certificate cer-tificate or record evidence for the law requires none Clearly the ceremony need not be proven by eye witnesses for a marriage is valid without witnesses and no ceremony is necessary If evidence evi-dence of that nature was required people peo-ple might transgress the laws prohibiting polygamy with impunity A man could secretly marry as many women as he pleased and the law could not reach him Proof that two parties have treated each other as husband and wife have lived together as such and HAVE HELD EACH OTHER OUT TO THE WORLD As such is sufficient to enable a cou t or jury to find that at some previous time the parties did as a fact agree to be husband hus-band and wife This is the conclusion of all the decisions of authority The previous pre-vious actual consent or agreement to be husband and wife is the ultimate and essential es-sential fact the jury must find The mode of life the holding out the declarations or admissions of the accused and the like are circumstantial evidence from which the fact mar be inferred I THE CONCLUSIONS The conclusion at which we arrive is that in order to prove the first marriage on an indictment for polygamy it is not necessary to produce eye witnesses of the ceremony Neither is it necessary to produce a marriage certificate or other record evidence Marriage may be proven by the declarations and admissions admis-sions of the accused and such declara tions aro proper to be considered by the jury as tending to prove an actual marriage If such declara ions convince the jury beyond a reasonable doubt the parties were married that is all that is required While the instruction complained of might have been more carefully worded still the charge when taken as a whole carefully guarded the rights of the de fendant and he was not injured thereby and the judgment of the court below should be affirmed ZANE Chief Justice concurs BOREMAN Associate Justice concurs |
