| Show MAL OR FEMALE A to 31 Camions I A Question as Angus Camlns j Sex is Raised The Court Finally Decides That He Is a Male An Important Point Ruis tThi5 Afternoon After-noon In the Cannon case yesterday afternoon the twelfth juror Robert Mulhall was secured from the second special venire Following are the jurors W D Palmer Peter Clays i Phil Klipple J I Richardson i M S Simmons T G lI Smith C J Smith Martin Maukin A 11 Johnson Thos Davis W lf Clark Robert Mulhall The indictment was then read to the jury and the case was adjourned until THIS MORNING The jurora were on hand and in their i places this morning before the crowd begun be-gun t gather but the court room rapidly filled up as the hour for opening court drew near I was generally anticipated that the interesting part of the trial would commence this morning with the I taking of testimony and the attendance was consequently increased The space directly in iront of the judges desk was entirely filled up with attorneys reporters and witnesses while every other portion of the room was crowded with spectators Governor Murray and several of the Utah Commissioners were present It became evident this morning that the defense proposed to contest every technical point that the ingenuity of the seven attorneys could suggest and Judge McBride threw down the gauntlet imme diatelyafter the case was opened by rising ris-ing an a OBJECTION TO TIE INDICTMENT Holding that it was defective The statute under which this prosecution was brought prohibited any male p lon I where the United States has jurisdiction from cohabiting with more than one woman The indictment did not charge that the defendant was a male person and there was nothing in it except the name of Angus to indicate the sex of the defendant and Angus might be the name of a female The offense could not have been could not have been committed com-mitted by any but a male person but it was not charged that the defendant in j this case was a male Every element of the offence found in the statute should be given by the indictment Judge McBride backedup the position by reading somewhat some-what copiously from authorities and from the opinions of other courts On these grounds the defense moved that the jury be directed to return a verdict of acquittal acquit-tal and the defendant discharged i Mr Dickson in reply admitted at the outset that the indictment would be insufficient in-sufficient unless the sex of the defendant defend-ant was made to appear with reasonable certainty I was alleged in this case that the defendant was pIejudiced because be-cause he was not informed by the indict i ment WHETHER HE WAS A MAN OR A WOMAN And was therefore unable to make a defense de-fense The Territorial statutes required that the offense be set forth with suffi cient clearness to enable the court to understand un-derstand what was charged and this requirement re-quirement was met by the indictment in this case In a prosecution for murder it I was not necessary for tho indictment to allege that the party slain was a human j being That would be inferred from the I name The sex of the defendant in this this case could also be determined by the name Angus a proper masculine name I was reasonable to infer he was a male person because he bore the name of male person What would be thought of a court that when an indictment was found against one John H McBride charging him with the offense of unlawful unlaw-ful cohabitation would cOle t the solemn sol-emn conclusion that for aught was contained con-tained in the indictment THE DEFENDANT WAS A WOMAN Laughter Mr Dickson also read from authorities at great length Mr Varian stated the object of an indictment in-dictment was to inform and advise the defendant of the nature of the offense charged against him The indictment in this case does not specifically state that ANGUS M CANNON IS A MAN But if he had any doubt on that point he should have filed a special demurrer He has pleaded not guilty to the indictment and stated that the name contained in the indictment was his true name Judge McBride closed the argument and still held that as the sex of the defendant de-fendant was an essential element to the offense it was necessary for the indictment I indict-ment to designate the sex The discussion on this point consumed nearly the entire morning session JUDGE ZANE In ruling on the motion stated that the conduc alleged was charged with suffi cent clearness but it did not appear that the conduct was that ot a male person by such a person as made it a crime and the question presented was Does the I fact that the defendant is named Angus M Cannon and is charged with cohabiting cohabit-ing with more than one woman indicate with sufficient clearness whether the defendant de-fendant is a nale or a female A titter went around the courtroom and the Judge and bailiffs rapped for order I it had been averred that the defendant was a male it would not have been indicated with any greater certainty that HE WAS A MALE Than the facts alleged in the indictment indicate The question is not whether this offense is sufficiently charged but whether it sufficiently appears to the court what offense has been committed I is the duty of the court to give the indictment in-dictment a reasonable construction and if upon giving it a reasonable construction construc-tion ton TIE SEX OF TIE DEFENDANT APPEARS TO BE MALE I The indictment is sufficient The court 1 i was of the opinion that it was as certain from the indictment that the defendant was a male as if the term male had I been used The motion was therefore I I overruled and exceptions were taken I The sex of the defendant having been 1 established Mr Dickson addressed the I jury briefly outlining what the prosecution prosecu-tion intended to prove It was in substance sub-stance that between the dates mentioned I in the indictment the defendant lived i t with Amanda 11 Cannon and Clara C 1 > Cannon a their husband The prosecution prosecu-tion would not attempt to prove actual sexual intercourse holding that that was necessary in order to prove cohabitation within the meaning of the statutes I Clara C Cannon was called as the first witness but before she was sworn Judge Bennett started the technicality bal again by stating the counsel for the defense were considering whether to raise the I most important point in the case at thisj time and would like an adjournment untir2 oclock in order to decide As the 1 time was then nearly 12 30 the request was granted I CLARA C CANNON I Was called again at oclock and testified t 4 I as follows I know the defendant Angus tle 4gi lI Cannon j QIc he a male person Judge Sutherland objected Withdrawn With-drawn t QAre you related to Angus M Cannon Can-non AI Tvas his wife I was married j to him about ten years ago Ever since t I was married to him I have lived I at 246 I First South street I have one child living I as the offspring of that marriage I occupy oc-cupy two rooms on the ground floor of that house and have a kitchen at the rear There is a hall running through the house and my rooms are east of the hall Amanda Cannon has I two rooms on the west side of the hall I suppose she is defendants wife she has livedin the house ever since I went there she has nine children living my hid lives with me and Amanda Cannons Can-nons children live with her During the past three years Mr Cannon Can-non has been in the habit of taking his meals with me about every third day I suppose he took his meals with Amanda Cannon a third of the time On Sundays Sun-days he took his breakfast with me his dinner with Sarah and supper at Am andas There are four rooms up stairs with a hall between I occupied the bedroom in the northwest corner of the house Amanda the southwest and defendant de-fendant the southeast room The bedrooms bed-rooms occupied by myself and the defendant de-fendant were on the same side of the hall I The witness was tured over to the defense de-fense the examination being conducted by Judge Bennett The witness named over the members of the family and stated that her d daughter and two orphan girls who lived with the family occupied her bedroom with her QDo they still continue 1o live with I you youObjected to by the prosecution and withdrawn QDid that state of things continue until February last This question was also objected to as irrelevant incompetent and immaterial Mr Varian arose at this point and stated that the manifest purpose of this question was to establish the fact that there had been no actual marital relations rela-tions A long discussion then arose as to what acts constituted cohabitation This is the most important point in the trial the prosecution claiming that it is not necessary to prove actual sexual intercourse inter-course in order to establish cohabitation but that living together in the same house as husband and wife constitute the offense This is a question upon which the whole case rests and which will affect a majority of the unlawful cohabitation cases that are to follow The discussion on this point was not ended at 4 oclock and will probably occupy oc-cupy the entire afternoon session I the court sustains the position taken by the prosecution Cannons conviction is a foregone conclusion |
