Show PLURAL COUNTS The I Judgment of the Lower Court In the Orocsbcck Case Vflrmed Vn Inillctmcnt May Contain Two or Male Counts I use Where Indictment Contained 220 limits Defendant Wan < onvlctcd nn 204 ChIld Jtifclico Zone to da > delivered m oi imon affirming tho decision ot the First Uiitria Court in the brocsbeck uiso 50 hero 11 appetl VMS taken on lie pinil that tho Grand Jury had no right to pi ice more than one count in tho sumo Inilictmcnt lollovvingh the opinion ill full SuiHEMbCouni UTAH IFBIUTOIIT his United States Hcspondint vs MelioliiB I Groesbeok Appellant PANE 0 Jhe defcnilant wan tried In this FIrst District Court o tott ludictmcnt ontalning tOll counts nnd convicted nnd cntcnccel to Imprisonment anil to pay n tIne Ott runt From that Judgment ho has np iclleel tei this court 1 ho llrbt count charges Ihe dofendant with unlawful cohabitation ilet more ia the lot cny of Innunrj 18S4 and the toth day of Juno of tho same year with Iho three women named And the second 10 for unlawful cohnl Italian with tho name women between tlio last lute above mined and this list day of the following ecombcr lo both of these counts thin do undiint pleaded not guilty and boforo tho Jury impaneled moved the Court oig rulo Olin Prosecuting Attorney to elect ono count and tn po to trial upon that Tho Court vorrnled l tho motion this defendant ox lepted and now assigns that ruling r na error cell appellant lij his counsel insists that cohabitation for tho cntlro titus of both icriods constituted hit ono offense that ike Grand Jury had no legal right to divide f lirl ho thee JY chareo two offenses iho rimo of unlawful colmbitation consists Ivmg or associating with moro than ono romnn R their hnshnnd apparentlj in tho relation under Homblanoo marriage reluton unler tho aomhlaloe thereof llioclaiinof thin appellantscounsel rosts upon the idea that the beginning nod thin oontinuntlou of tho association nro essential to tho offense that tho moro continuance con-tinuance of the show of marriage is not oath nont I a man should lies with moro than me woman as their husband during thrco yearn it is claimed that in so doing ho would I commit but ono offense It is t admitted however that if ho oven to cense to cohnbl I it tho end of tho first of the three years nail agaIn live with them us their husband during i the last oho thrco ho would thereby comrni two crimes Assuming the law as claimed tho man who cohabits three years commits mo crime and is subject to ono punishment july whilo ho who cohabits two years com nuts two crimea and is subject to two pun islnnonts According to this tho create tho cohabitation lNf loss I tho punishment tho less the cohabitation the Creator the punishment Iho punishment is to tho co habitation in an inverse ratio ruto bach I view urmshea no inducement to n man in polygamy or in tho practice of unlawful un-lawful cohabitation to reform Ihe Ian Mago of the Btntuto is I any loam person 0 0 0 cohabits with moro titan ono woman wo-man ho shall bo deemed guilty etc This formation of polygamous relations com indicing to live with two or moro women an wives is not indispensable to the crime hsot II S hs isc at ntoco Soda relations loop have been formed b unlawful association may have commenced long before lbs lawn defining tho crnu hrnIrl t 1 uI 3 took effect as iu the case of the United Mats vs Angus li Cannon affirmed bv tho faupremo Court of tho United States Case may l > e cited holding that tho same Gran Jury can indict but for ono offense where the crime may bo I continuing one In some of these n portion of tho time of each of two counts of the indictment SOlOS covered by both In others I appeared that the prose eating witless woo attempting to use this court to gratify his malice or for pecuniar gain harrassiug t Jn oppressing the defeni alit with a multiplicity of prosecutions nod accumulated costs and tcero In othiereonea the Legislature iu describing tho crime bad indicated an intention to include the nets cOlIsttUtl1 the inception of tho offense an nn essential element to it The point nnde discussion wan decided ndveisely to nller pollants views in the cat > o of tho Unite Mates vs Snow 1ncifio Heporter Vol9 No9 page GSO lo the same effect ore this cases Com vs Connors llu Mass J Moreyvs Com 103 Mass 43 I is also insisted that it I was unjust uitd oppressive and really to the disndvnntag of the defendant to put him upon trial OIl both counts before tho same jury hat itt considering the question of Ins guilt npo ono they would be influenced by the evi donee under tlio other Hut tim courts Imv held that in a trial ou a single charge ov deuce lt tending to prove the defendants re Intious to the < mel before nnd lifter Iho ti uo mentioned in the indictment should go to the jury to be considered with the evi donee for and against him between the date named for tho purpose of aiding them in dt termiumg this character of his associntio between tho dates that it is proper for tho jury to know his feelings dispositions mid habits towards them before and after the I time of the offense n much ns during the II I time that such facts shed light upon the conduct complained of so that defendant was placed at no disadvantage by bein tried both on charges before the same jury Iho Court sentenced the defendant to distinct punishments on each count 10 I this tho appellant objected nod oxceplo and now iissicns lie name ns error the I respondent relies on section 10M e H U b Slilten there nro Hovcrnl charges ajams any person for tho sumo act or transnolioi or for two or moro lets or transactions coil meted together or for two or moro acts or transactions of tho samo class of crimes or offenses which buy bo properly joined In etoad of having Severn indictments the I whole may be joined in one indictment ill i separate counts and two If or more indictments indict-ments are found in I such case the Court may order them to bo consol orler consul dated This section provides IhuI when two or moro crimes are charge of the lame class which can bo proporl joined they bay be included m the samo in dictment in Kepirato counts and in ouch if two case indictments or moro are foahld Conll tho court lay order them consolidate orler conoollated Whilo thin section may anthorio different descriptions of tho same offense in hcpnrn counts of tho tmnio indictment in order to prevent I fatal variance the intent to nt IU thence the joinder of separate crimes In i different counts of the snmo indictment h j apparent Such joinder prevents the trouble delay nnd cost of moro than ono trial l lie I dehi cost and burma t it of several pea noo II eoutions on a number rl i tlltol ace I often almost as oppressive nn the puuisl boot imposed i he object uf uniting offenses of the sain class or of ordering the consolidation of dif Cerent Indictment is not to prevent the put ishmcutof the offender fur more than ono offense Hut such would be the affect if i punishment could lot bo inflicted on tho I separate counts Ills same class of conduct constitutes the I two misdemeanors charged in this Indict bent and they could bo properly unl led lbs provisions of the section quoted are lot new sei far us U relates to misdcmeanoi I wo or more misdemeanors rowing out of separate and distinct Iran nctioiib may according to tho doctrn which appeared to prevail everywhere 10 I joined I in tho snmo indictment whet ettl braced in different counts I is I nut cato ca-to say precisely what il i tho limit of this doctrine t except that the Juelj0 will l oxer usa at least his supervision to Iho extent l i it I protecting the prisoner from heinc preji diced In his rights of defense Where u statute makes it I misdemranu to Hell intuxlcating 1 liquor 1 without u liconsi und imiioses u tIlts fur taut sale seven cuuuts fur distinct saleuma bu joined in ole indictment and the uooumulnted penalty In posed Ilishup un Criminal iroceeluro i2 J d ill live trJ howls Martin va J ho lee ic Ti > ills 4JJ Ihu law us stated by Jiisho 11 the retailing I ductrino in Liiland and In those mutes uf this country where a differ cut rule is nut provided by statute Ohio ancient common faw WOO otherwise and hl few recent cases in this country may be I fouud tu the contriirj the leading vase to i holding is that of Ohio 1eople ex rel Jwe ve Lncoiube Gil N Y MJ II that case the I iclation was tried upon an indictment con laming 1130 distinct counts and convicted on 01 Ho was sentenced to twelve successive succes-sive foil terms of imprisonment of one year each and tho fines of 2uO each upon other counts to additional fines opn t In all l2 tOO The nes amounting to J12COO np fdl l pellnte t court held that he could not be sentenced sen-tenced on but ono count This was a hard case and furnishes n precedent contrary to thor e weight of authority Where there are several sev-eral charges in different counts of an indictment indict-ment against the same person for the same act or transaction but punishment could bo Imposed bat where the acts or transactions transac-tions nro different nnd constitute different offenses and belong to tho same class and may he properly joined separate punishments punish-ments may be imposed on each count The case of ex partr Hibbs 9 Federal Iteporter of tho date of March 1C whloh 1 a carefully considered decision by Judge Dendy expressly ex-pressly rules this point I n also argued that tho trial of the defendant for two offenses before the samo jury deprived him of the benefit of threw peremptory challenges U Is conceded that f he defendant was not deprived of n hallengo for Implied or actual bias or for nny sufficient cause Ho hal three peremptory challenges in selecting I jury j of twelve men If a scpiralo trial on fo ilh nI flloh each count Jot n given I him ho would have had no more I is true bo would have bad the rIght to challenge nix men in selecting select-ing two juries but then thore would have heel hut three challenges for each fifteen ilq qualified Jurors and the defendant was n likely tosecuro twelve ood jurors with thrco peremptory challenges I Jol trial 1 nstwettv 1 rl N four with nil 1 such challenges in two tri If Iho end Bought IH hiy hereto challenges 1 ns well an for caone is I intelligent fair and impartial im-partial jurors Iho appellant also objects to Phillip Grill ns I juror because it woo alleged that tho evidence did not show that ho was n citizen of the United States I dons not appear from this record that tho defendant exhausted ex-hausted his peremptory challenges nor dos I appear that tho record contains nil tho evidence touching the citizenship of tho juror j jim evidciico heird by this Court sittsflod I that this juror was a citizen Wo i must therefore presume that the ovidenco heard was sufficient to justify the finding of tho Court We find no error iu this record and therefore there-fore affirm tile judgment of the Court below Homur AL concurs Pov ERS A J concurs |