29 L.Ed. 561
as: 116 U.S. 55, 6 S.Ct. 278)
Court of the United States
S. C. 7 Pac. Rep. 369.
Filed December 14, 1885
Error to the Supreme Court of the Territory of Utah.
and FIELD, JJ., dissent.
and Information k196(6)
Act Cong. March 22, 1882, c. 47, 22 Stat. 31, § 3, 18 U.S.C.A. § 514, makes the
offense of polygamy punishable when committed by a male person, a defendant who
pleads to an indictment containing no allegation that the defendant was a male
person, instead of demurring thereto, will be held under Crim.Proc.Act Utah, Laws
1878, p. 91, § 200, requiring objections appearing on the face of the indictment
to be taken by demurrer, to have understood that, as the offense could only be
committed by a male person, the charge was against a male person, and not to have
been prejudiced in respect to any substantial right.
man who lives in the same house with two women, eats at their respective tables
one-third of his time, and holds them out to the world, by his language or conduct,
as his wives, is guilty of the offense of polygamy, under Act Cong. March 22,
1882, c. 47, 22 Stat. 31, 18 U.S.C.A. § 514, although he may not occupy the same
bed or sleep in the same room with either of them, or actually have sexual intercourse
with either of them.
indictment which charges that "Angus M. Cannon * * * did unlawfully cohabit with
more than one woman," in violation of Act Cong. March 22, 1882, § 3, 18 U.S.C.A.
§ 514, providing that, "if any male person in a territory * * * shall hereafter
cohabit with more than one woman, he shall be deemed guilty of a misdemeanor,"
sufficiently shows that defendant was a male person.
indictment under Act Cong. March 22, 1882, § 3, 18 U.S.C.A. § 514, providing that,
"if any male person in a territory * * * shall hereafter cohabit with more than
one woman, he shall be deemed guilty of a misdemeanor," which charges that defendant
"did unlawfully cohabit with more than one woman," need not allege that defendant
was a "male person."
**278 F. *56 S. Richards, for plaintiff in error.
Gen. Goode, for the United States.
M. Cannon was indicted by a grand jury in the district court of the Third judicial
district in and for the territory of Utah, in February, 1885, for a violation
of section 3 of the act of congress approved March 22, 1882, c. 47, entitled
'An act to amend section fifty-three hundred and fifty-two of the Revised Statutes
of the United States, in reference to bigamy, and for other purposes.' 22 St.
31. Section 1 of the act amends section 5352 of the Revised Statutes, which was
a re-enactment of section 1 of the act of July 1, 1862, c. 123, (12 St.
501,) and, in order that the amendment may be understood, the original and new
sections 5352 are here placed side by side, the parts in each which differ from
the other being in italic:
person having a husband or wife living, who marries another, whether married
or single, in a territory or other place over which the United States have
exclusive jurisdiction, is guilty of bigamy, and shall be punished
by a fine of not more than five hundred dollars, and by imprisonment for a term
not more than five years; but this section shall not extend to any person by reason
of any former marriage whose husband or wife by such marriage is absent
for five successive years, and is not known to such person to be living; nor to
any person by reason of any former marriage *57 which has been dissolved
by decree of a competent court; nor to any person by reason of any former marriage
which has been pronounced void by decree of a competent court, on the ground of
nullity of the marriage contract.'
person who has a husband or wife living, who, in a territory or other
place over which the United States have exclusive jurisdiction, hereafter
marries another, whether married or single, and any man who hereafter simultaneously,
or on the same day, marries more than one woman in a territory or other place
over which the United States have exclusive jurisdiction, is guilty of
polygamy, and shall be punished *57 by a fine of not more than five
hundred dollars and by imprisonment for a term of not more than five years;
but this section shall not extend to any person by reason of any former marriage
whose husband or wife by such marriage shall have been absent for five
successive years, and is not known to such person to be living, and is believed
by such person to be dead; nor to any person by reason of any former marriage
which shall have been dissolved by a valid decree of a competent
court; nor to any person by reason of any former marriage which shall have
been pronounced void by a valid decree of a competent court, on the ground
of nullity of the marriage contract.'
2 to 8, inclusive, of the act of 1882 are follows:
2. That the foregoing provisions shall not affect the prosecution or punishment
of any offense already committed against the section amended by the first section
of this act.
3. That if any male person, in a territory or other place over which the United
States have exclusive jurisdiction, hereafter cohabits with more than one woman,
he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be
punished by a fine of not more than three hundred dollars, or by imprisonment
for not more than six months, or by both said punishments, in the discretion of
4. That counts for any or all of the offenses named in sections 1 and 3 of this
act may be joined in the same information or indictment.
'Sec. 5. That in any prosecution for bigamy, polygamy, or unlawful cohabitation,
under any statute of the United States, it shall be sufficient cause of challenge
to any person drawn or summoned as a juryman or talesman-- First, that
he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation
with more than one woman, or that he is or has been guilty of an offense punishable
by either of the foregoing sections, or by section fifty-three hundred and fifty-two
of the Revised Statutes of the United States, or the act of July 1, 1862, entitled
'An Act to punish and prevent the practice of polygamy in the territories of the
United States and other places, and disapproving and annulling certain acts of
the legislative assembly of the territory of Utah;' or, second, that he
believes it right for a man to have more than one living and undivorced wife at
the same time, or to live in the **280 practice of cohabiting with more
than one woman; and any person appearing or offered as a juror or talesman, and
challenged on either of the foregoing grounds, may be questioned on his oath as
to the existence of any such cause of challenge, and other evidence may be introduced
bearing upon the question raised by such challenge; and this question shall be
tried by the court. But as to the first ground of challenge before mentioned,
the person challenged shall not be bound to answer if he shall say upon his oath
that he declines on the ground that his answer may tend to criminate himself;
and if he shall answer as to said first ground, his answer shall not be given
in evidence in any criminal prosecution against him for any offense named in sections
one or three of this act; but if he declines to answer on any ground, he shall
be rejected as incompetent.
6. That the president is hereby authorized to grant amnesty to such classes of
offenders guilty of bigamy, polygamy, or unlawful cohabitation, before the passage
of this act, on such conditions and under such limitations as he shall think proper;
but no such amnesty shall have effect unless the conditions thereof shall be complied
7. That the issue of bigamous or polygamous marriages, known as Mormon marriages,
in cases in which such marriages *59 have been solemnized according to
the ceremonies of the Mormon sect, in any territory of the United States, and
such issue shall have been born before the first day of January, A. D. 1883, are
8. That no polygamist, bigamist, or any person cohabiting with more than one woman,
and no woman cohabiting with any of the persons described as aforesaid in this
section, in any territory or other place over which the United States have exclusive
jurisdiction, shall be entitled to vote at any election held in any such territory
or other place, or be eligible for election or appointment to, or to be entitled
to hold, any office or place of public trust, honor, or emolument, in, under,
or for any such territory or place, or under the United States.'
9 of the act contains provisions declaring vacant registration and election offices,
and enacting that persons shall be appointed to execute those offices, by a board
of five persons, which is directed to canvass votes to be returned to it for members
of the legislative assembly, with the proviso 'that said board of five persons
shall not exclude any person, otherwise eligible to vote, from the polls on account
of any opinion such person may entertain on the subject of bigamy or polygamy;
nor shall they refuse to count any such vote on account of the opinion of the
person casting it on the subject of bigamy or polygamy.'
indictment against Cannon was as follows: 'The grand jury of the United States
of America within and for the district aforesaid, in the territory aforesaid,
being duly impaneled and sworn, on their oaths do find and present that Angus
M. Cannon, late of said district, in the territory aforesaid, to- wit, on the
first day of June, A. D. 1882, and on divers other days, and continuously between
the said first day of June, A. D. 1882, and the first day of February, A. D. 1885,
at the county of Salt Lake and territory of Utah, did unlawfully cohabit with
more than one woman, to-wit, one Amanda Cannon and one Clara C. Mason, sometimes
known as Clara C. Cannon, against the form of the statute of the said United
*60 States in such case made and provided, and against the peace and dignity
of the same.' The defendant pleaded not guilty, and the case was tried in April,
1885, resulting in a verdict of guilty, and a judgment imposing a fine of $300,
imprisonment in the penitentiary, for six months, and further imprisonment till
the payment of the fine.
the jury was impaneled and sworn, and the prosecution had called a witness, the
defendant objected to the giving of any evidence under the indictment, on the
ground that the indictment was defective and did not charge **281 any criminal
offense, nor any offense under the statutes of the United States, nor the offense
described in the statute, either in the statutory words or equivalent words, and,
especially, did not show that the person charged was a male person; and was insufficient
to warrant a verdict or support a judgment of conviction. The court overruled
the objection, and the defendant excepted. The following proceedings then took
place, as shown by the bill of exceptions:
C. Cannon, a witness called for the prosecution, was sworn, when the defendant
renewed the said objection to the indictment, with a like ruling by the court
and a like exception. The witness testified as follows: 'My full name is Clara
C. Cannon. I know the defendant. I have been his wife. I was his wife. I was married
to him about ten years ago, and have since lived at 246 First South street, Salt
Lake City. I live there now, and have lived in the same house since shortly after
I was married. The defendant has lived in the same house part of the time, and
in the same house during the past three years. I have one living child, which
is a child of that marriage, born January 11, 1882. I have had two other children
by that marriage; both born before the living one. In this house I occupy two
rooms on the ground floor, a parlor and a dining-room, on the east side. My kitchen
is back, not attached to my part of the house. I have occupied this part of the
ground floor since I first went to live in the house. There is a hall running
through the house on the ground floor, and the rooms I occupy on that floor are
on the east side of the *61 hall. I know Amanda Cannon. She has lived in
the same house that I live in during the past three years. She has occupied, on
the ground floor, two rooms on the west side of the hall, besides her kitchen,
which is attached to the back of the main building, and is not the kitchen I use.
I suppose Amanda Cannon is defendant's wife. I have heard him speak of her as
his wife,--as Mrs. Cannon,--and she has lived in the house ever since I went to
live there. She has nine children, I think. During the past three years, I think,
all her children have been living there at home, but not all the time. My little
child lives with me in my part of the house,--I mean the child of this marriage.
The children of Amanda Cannon live with her in her part of the house. During the
past three years, and prior to the month of February in this year, the defendant
has been in the habit of taking his meals with me, in my part of the house, a
portion of the time,--about one-third of the time. There were stated intervals.
He took his meals with me every third day--with me and my children. I have a son
and daughter grown up, and two orphan children. He took his meals with me and
the child of this marriage and the other children every third day. He took his
meals with Amanda Cannon and her family one-third of the time. He took all three
of his meals with me every third day, on week- days; and on Sunday morning he
had breakfast at my house,--that is, he took his meals with me two days of each
week, and also his breakfast Sunday morning, which made one-third of the time.
On Sunday he took his dinner at Sarah's, and his supper at Amanda's. There are
four rooms on the second floor of the house used as bed-rooms, and a hall, with
two of the rooms on either side of it. The rooms open into the hall. During the
past three years I have occupied the bed- room in the north-east corner, and Amanda
has occupied the one in the south- west corner, of the house. The defendant has
occupied the bed-room in the south-east corner. The room occupied by me as a bed-room,
and the one occupied by the defendant as a bed-room, are on the same side of the
hall, and there is no intervening room. The house I speak of is in Salt Lake county,
'My oldest daughter is twenty-three years old, *62 and my son twenty. I
have a little girl, Clara Hardy, twelve years old, and a little girl ten years
old, who are orphans. Their mother was a niece of mine, and when she died. she
left them to me. These, with my little daughter Alice, **282 three years
old past, are the members of my family. My daughter Alice was three years old
last January. The two orphan children have lived with me for the last five years.
The two little girls and my oldest daughter and the youngest daughter have occupied
my room with me. We have two beds, and have all slept in that room.'
'State whether that state of things, and that relation with your children and
the orphans, continued until February last.' Objected to by the prosecution on
the ground that it is immaterial, irrelevant, and incompetent. The objection was
argued; the proscuting attorney announcing that the objection was on the relevancy,
materiality, and competency of the evidence offered, and not on the ground it
was not a proper subject of cross-examination or that the offer was out of order,
but that any proof tending to show non-access was immaterial; and defendant's
counsel admitted and stated to the court that the evidence was offered as tending
to show, with other evidence to be given, non- access during the time charged
in the indictment, and as tending to disprove any presumption of sexual intercourse
which might be raised by testimony of the witness. The court sustained the objection;
stating that the question presented by the objection had been deemed by both parties
as being properly raised by the interrogatory objected to; and the defendant excepted.
'Was Amanda Cannon married to defendant prior to the time you was married to him?'
Counsel for the prosecution objected to the question as irrelevant, incompetent,
and immaterial. The court sustained the objection, and defendant excepted to the
following questions were severally propounded to the witness; counsel stating
that the sole purpose for which the questions were asked was to establish sexual
non-intercourse: 'Question. Did you hear and know of the passage of the
act of *63 congress, usually called the 'Edmunds Act,' about the time it
was passed? Q. What had been the habit of defendant prior to that time,
as to his occupation of your room and bed, and the room and bed of Amanda Cannon?
Q. About the time of the passage of that law, did he say anything to you and
the other members of the family in respect to his intention to not violate that
law, and what did he say? Q. Did you assent to what he proposed? Q.
After that, did any change occur in his habit as to occupying your room and bed,
and what, if any, was the change? Q. After March 22, 1882 has the defendant
at any time occupied your room or bed, or has he had any sexual interoourse with
you?' To each of these questions the prosecuting attorney objected, on the ground
that the evidence sought was irrelevant, immaterial, and incompetent, and the
objections were based solely on these grounds, and not to the form of the questions,
or time or manner of offering the evidence. The court sustained each objection,
and to the ruling on each the defendant excepted.
M. Cannon, a witness sworn for the prosecution, testified: 'My father's name is
Angus M. Cannon; he is the defendant here. My mother's name is Sarah M. Cannon.
I have heard my father state he was married to Amanda Cannon.' Question.
'Have you heard your father state he was married to Sarah Cannon?' Defendant objected
to the question on the ground it is immaterial; that Sarah Cannon is not named
in the indictment, or any marriage with her charged. The prosecuting attorney
explained that he intended to show that Sarah and Amanda Cannon were married to
defendant by the same ceremony, and that he offered the evidence to show whom
he had the right to call as a witness. The court overruled the objection, and
allowed the evidence for this purpose, and the defendant excepted to the ruling.
Witness. 'I have heard my father say he way married to my mother and Amanda
Cannon at one and the same time.'
M. Cannon, Jr., sworn for the prosecution, testified: *64 'My father's
name is Angus M. Cannon, and my mother's name is Amanda Cannon. I **283
have lived during the last three years in the same house with my father and mother.
My mother has nine children; eight of them are living at home, and have during
this period. I took my meals there, and slept there on my mother's side of the
house. Have taken my meals at the same table with the rest of the family. My father
has taken his meals about one-third of the time at Clara's, one-third of the time
at Sarah's, and one-third of the time with my mother. About every third day he
takes his meals with my mother and her children. There are four sleeping apartments
in the second story of the house; two on each side of the hall-way which goes
north and south, and the rooms on each side open into the hall. During the period
mentioned Clara C. Cannon has occupied the north-east bed-room, my father has
occupied the south-east, and my mother the south-west bed-room.' Cross-examined:
'Clara Cannon has occupied the north-east bed-room, to my knowledge, five or six
years.' Question. 'Who occupied it with her?' Objected to as immaterial,
etc. Objection sustained, and defendant excepted. 'My father has occupied the
same house with Clara and Amanda Cannon. I have not been at home continuously
for the past three or four years. I have been away probably between five and six
months, and, with this exception, I have been there more than three years.'
Q. 'Do you know where your father, during that time, passed his nights?' Objected
to. Objection sustained, and defendant excepted to the ruling.
prosecution here rested.
M. Cannon recalled for further cross-examination: 'The substance of what my father
said about his marriage to Sarah and Amanda Cannon was that he married them at
the same time. He said he married them prior to any act against polygamy, and
when he considered it legal. He perhaps stated the year, but I don't at present
recollect it. I am in my twenty-fourth year.'
Clara C. Cannon recalled by the defendant, and testified: 'I am a member of what
is called the Church of Latter-day Saints, and I have been a member for twenty-four
years. The defendant is also a member of that church. I don't know how long he
has been a member, but it is ever since I first knew him. Mrs. Amanda Cannon is
a member of the same church, and has been since I first knew her; that is, thirteen
years.' Question. 'Was Mrs. Amanda Cannon married to the defendant prior
to your marriage to him?' Objected to by counsel for prosecution as irrelevant
and immaterial. Objection sustained, and defendant excepted to the ruling.
counsel then made the following offer of proofs: 'We offer to prove, by this and
other witnesses to be called, that Amanda Cannon was married to the defendant
before the marriage of this witness; that, prior to the passage of the Edmunds
law, he had alternately occupied the sleeping-room and bed of each; that each,
with her family, occupied, and still occupies, separate apartments, including
separate dining-rooms and kitchens; that after the Edmunds law had passed both
houses of congress, and before its approval by the president, the defendant announced
to witness Amanda, and their families, that he did not intend to violate that
law, but should live within it so long as it should remain a law, and at the same
time assigned his reasons for so doing; and thereafter, and during the times alleged
in the indictment, he did not occupy the rooms or bed of, or have any sexual intercourse
with, the witness, and to this extent, by mutual agreement, separated from the
witness; that, during all the time mentioned in the indictment, the two families
have taken their meals in their respective dining-rooms; that defendant has taken
his meals with the witness and her family, in her dining-room, two or three days
each week, has provided for the support of the witness and her family distinct
from other family expenses, and allowed them to occupy separate apartments in
the same house occupied by him and Amanda, and this is the extent of his relations
with the witness; and also **284 that the defendant was financially unable
to provide a separate house for witness and her family *66 also that the
witness and her family, and Amanda and her family, are dependent on the defendant
for their support. To this offer, and each paragraph thereof, the prosecution
objected, and the objection was sustained by the court, and the defendant excepted
to the ruling.'
foregoing was all the evidence given in the case. The court instructed the jury
as follows: 'The indictment in this case charges that the defendant, on the first
day of June, A. D. 1882, and on divers other days, continuously between said first
day of June, 1882, and the first day of February, 1885, did unlawfully cohabit
with more than one woman, to-wit, one Amanda Cannon and one Clara C. Mason, sometimes
known as Clara C. Cannon. [If you believe from the evidence, gentlemen of the
jury, beyond a reasonable doubt, that the defendant lived in the same house with
Amanda Cannon and Clara C. Cannon, the women named in the indictment, and ate
at their respective tables one-third of his time or thereabouts, and that he held
them out to the world, by his language or his conduct, or by both, as his wives,
you should find him guilty.] [It is not necessary that the evidence should show
that the defendant and these women, or either of them, occupied the same bed or
slept in the same room; neither is it necessary that the evidence should show
that, within the time mentioned, he had sexual intercourse with either of them.]
I will state the law presumes the defendant innocent until proven guilty beyond
a reasonable doubt; that you are the judges of the credibility of the witnesses,
the weight of the evidence, and of the facts, and if you find the defendant guilty,
you will say in your verdict, 'We, the jury, find the defendant guilty in manner
and form as charged in the indictment;' and, if you find him not guilty, you will
say, 'We, the jury, find the defendant not guilty.'' No further or other instructions
were given to the jury.
defendant excepted to the parts of the instructions which are inclosed in brackets.
He also submitted the following prayers for instructions, each of which was separately
refused, followed by a separate exception:
The offense charged is that defined in the third section *67 of the act
of congress entitled 'An act to amend section 5352 of the Revised Statutes, in
reference to bigamy, and for other purposes,' approved March 22, 1882, commonly
known as the 'Edmunds Act.'
That section is applicable to Utah territory, and provides that if any male person
here, since March 22, 1882, has cohabited with more than one woman, he shall be
deemed guilty of a misdemeanor.
This section does not apply to male persons who have at successive periods cohabited
with lawful wives, but only to contemporaneous cohabitation with two women.
Cohabitation includes living together as members of one family,--a consorting
in social intercourse, and eating and lodging together. They need not occupy the
same bed, but there must be an equivalent intimacy.
The word 'cohabit,' in this section, is to be understood in a technical or restricted
sense. It does not apply to all persons who live with each other under one roof
as members of one family, but only to adults of different sexes who live together
in the manner that husbands and wives do, including the intimacy of occupying
continuously or for recurrent periods the same bed.
[Requested if the last refused.] The word 'cohabit,' in this section, is to be
understood in a technical or special sense. It does not apply to all persons of
opposite sexes who live with each other under one roof as members of one family,
but only to adults of different sexes living together in the manner that husbands
and wives do. So understood, it must include a continuous or recurrent occupying
of the same apartments, in the manner usual with persons of opposite sex who live
in sexual intimacy.
No case is within this section which does does not include such association of
a man with two women in their mode of living as to make it an **285 example
of immorality, by necessarily indicating an habitual intimacy with each of two
or more women by mutual consent.
The cohabitation which is made a misdemeanor by this section is an habitual residence
or dwelling by a man with two or more women in intimate sexual relations.
'(9) The ingredients of this offense are--First, that the person charged
be a male person; second, that he has lived or dwelt with two women, either
continuously at the same time, or with each in alternate periods of time; third,
that he has so lived with each of two or more women in such personal intimacy
as to indicate that he has had sexual intercourse with them, respectively, at
his and their pleasure.
The court will interpret this Edmunds act by its terms, and in view of the actual
situation in this territory, of which the court is judicially cognizant, and thus
deduce that congress intended to apply a corrective to polygamy and the anomalous
status produced by its long practice.
The act is intended to prevent any future polygamous marriages, and to prevent
the continued cohabitation of persons who are already in polygamy. The section
making cohabitation a misdemeanor has special or primary application to a cohabitation
with a plurality of wives. This obvious intention indicates the ingredients of
the criminal cohabitation: that it is a living together in the sexual intimacy
usual between persons united in the marital relation, immoral in example for not
having the sanction of lawful marriage, and pernicious in producing an illegitimate
This act legitimizes all children born prior to January 1, 1883. It authorizes
amnesty to all offenders prior to its enactment, and thus it is shown that the
act was passed in view of the long existence of polygamy in this territory, and
the multitudes of children born therein. It is merciful to those who have broken
the laws against polygamy, and humane and paternal to the children born in polygamy.
This act does not command polygamous fathers to abandon their children nor to
break off all communication with their mothers. Such fathers are at liberty, and
under the strongest moral obligation, to support both. He may hold any friendly
and familiar relations, other than sexual, naturally incident to the proper discharge
of such duties. All his social familiarity with the mothers of such families,
established prior to the passage of said act, not shown to include all the particulars
of cohabitation as the court has defined it, *69 should be considered by
the jury, with the legal presumption of innocence; and the failure to establish
such cohabitation entitles the defendant to acquittal.
The existence, at the time of the passage of the Edmunds act, of a polygamous
relation between the defendant and the women mentioned in the indictment, though
an illegal relation, is not and cannot be made by the statute evidence of any
fact necessary to or tending to a conviction for violating the third section.
Any enactment intended for such a purpose would be ex post facto and void.
The law presumes innocence, and therefore that all persons who were cohabiting
when the Edmunds law took effect, contrary to the provisions of that act, then
ceased to do so.
No fact in the conduct of the defendant subsequent to the passage of the Edmunds
act can be made more significant of guilt in violating the section against cohabitation,
by reason of the existence of the polygamous relation between him and the women
mentioned in the indictment prior to the passage of that statute.
The defendant is entitled to show his marital and parental status at the
time of the passage of the Edmunds act, to explain his subsequent conduct towards
the women mentioned in the indictment, and to show an innocent and laudable motive
'(18) For this purpose he may show that he had families of children by said women,
respectively, at and prior to the passage of said act; that such women and their
children had been and were still dependent on him for their support; that he has
continued since to support them; that he has visited them for that purpose, and
as the father of said children; and that he has not had sexual intercourse with
such women since the passage of said act. And no inference of cohabitation can
be drawn from the fact of such relations; from the fact of furnishing support
for such mothers and children, without living with them; nor from the fact of
visiting them,--taking meals with them; nor from his living in a separate suite
of rooms in the same house, belonging to himself, as that occupied by them,
*70 if they occupied separate apartments and habitually lived as a separate
and distinct household; nor can such inference be drawn from all such facts. They
do not, of themselves, constitute cohabitation.
There is no evidence in this case tending to show this defendant recognized Clara
C. Cannon as his wife, or held her out to the world as such, since the passage
of the Edmunds bill, and within the dates named in the indictment; and without
such proof the jury should acquit the defendant.
If the jury find that the defendant has not held out to the world and announced
and recognized as his wife the Clara C. Cannon named in the indictment, since
the passage of the Edmunds bill, and within the dates named in the indictment,
then they should acquit the defendant.
Sexual intercourse is a necessary element of the crime of cohabitation; and if
the jury find the defendant has not had sexual intercourse with both Clara C.
and Amanda Cannon since the passage of the Edmunds bill, and within the dates
named in the indictment, then they should acquit the defendant.
In order to find the defendant guilty of the offense charged, it must appear that
the defendant had gone through the forms of marriage with both of the women named
in the indictment, Amanda and Clara C. Cannon; that, it not appearing in this
case that he was ever married to Clara C. Cannon, the jury should acquit.
If the jury find that there never was the form of marriage between Clara C. Cannon
and the defendant, they should acquit.
There can be no conviction under the indictment in this case, for the reason that
there is no charge that the defendant was ever married to either Amanda or Clara
C. Cannon, nor any charge that he held out either or both as his wives.'
the judgment the defendant appealed to the supreme court of the territory, which
affirmed it, and he has brought the case to this court by a writ of error.
principal question argued at the bar was the proper *71 construction of
section 3 of the act of 1882. That question depends on the meaning of the word
'cohabit,' in the section. The meaning contended for by the defendant is indicated
by his offer to show, by Clara C. Cannon, non-access, and facts to rebut the presumption
of sexual intercourse with her, and the actual absence of such intercourse; and
by the requests for instructions to the jury, which are based on the view that
the word 'cohabit' necessarily includes the idea of having sexual intercourse.
But we are of opinion that this is not the proper interpretation of the statute;
and that the court properly charged the jury that the defendant was to be found
guilty if he lived in the same house with the two women, and ate at their respective
tables one-third of his time or thereabouts, and held them out to the world, by
his language or conduct, or both, as his wives; and that it was not necessary
it should be shown that he and the two women, or either of them, occupied the
same bed or slept in the same room, or that he had sexual intercourse with either
interpretation is deducible from the language of the statute throughout. **287
It refers wholly to the relations between men and women founded on the existence
of actual marriages, or on the holding out of their existence. Section 1 makes
it an offense for a man or a woman, with a living wife or husband, to marry another,
and calls such offense polygamy. Section 3 singles out the man, and makes it a
misdemeanor for him to cohabit with more than one woman. Section 4 provides that
counts for any or all of the offenses named in sections 1 and 3 may be joined
in the same information or indictment. This certainly has no tendency to show
that the cohabitation referred to is one outside of a marital relation, actual
or ostensible. So, in section 5, bigamy, polygamy, and unlawful cohabitation are
classed together, and it is provided that, in any prosecution for any one of such
offenses, it shall be sufficient cause of challenge to a juror that he has been
living in the practice of bigamy, polygamy, or unlawful cohabitation with more
than one woman, or has been guilty of an offense punishable by the preceding sections,
or that he believes it to be right for a man to have more than one living and
undivorced wife at the same *72 time, or to live in the practice of cohabiting
with more than one woman. It is the practice of unlawful cohabitation with more
than one woman that is aimed at,--a cohabitation classed with polygamy and having
its outward semblance. It is not, on the one hand, meretricious, unmarital intercourse
with more than one woman. General legislation as to lewd practices is left to
the territorial government. Nor, on the other hand, does the statute pry into
the intimacies of the marriage relation. But it seeks, not only to punish bigamy
and polygamy when direct proof of the existence of those relations can be made,
but to prevent a man from flaunting in the face of the world the ostentation and
opportunities of a bigamous household, with all the outward appearances of the
continuance of the same relations which existed before the act was passed; and
without reference to what may occur in the privacy of those relations. Compacts
for sexual non-intercourse, easily made and as easily broken, when the prior marriage
relations continue to exist, with the occupation of the same house and table and
the keeping up of the same family unity, is not a lawful substitute for the monogamous
family which alone the statute tolerates. In like manner, bigamy, polygamy, and
unlawful cohabitation are classed together in sections 6 and 8 of the act. Section
6 authorizes the president to grant amnesty to persons guilty of bigamy, polygamy,
or unlawful cohabitation before the passage of the act. Any unlawful cohabitation,
under the laws of the United States, before that time, could only have been ostensibly
marital cohabitation, for the only statute on the subject was section 5352 of
the Revised Statutes, in regard to bigamy. Section 8 excludes from voting every
polygamist, bigamist, or person cohabiting with more than one woman, and every
woman cohabiting with any polygamist, bigamist, or person cohabiting with more
than one woman.
section was considered by this court in Murphy v. Ramsey, 114 U.
S. 15, S. C. 5 Sup. Ct. Rep. 747, where Mr. Justice MATTHEWS, speaking for the
court, in construing the words 'bigamist' and 'polygamist' in that section, says,
(page41:) 'In our opinion, any man is a polygamist or bigamist, in the sense of
this section of the act, who, having previously married one wife, still living,
and having another at the time when he *73 presents himself to claim registration
as a voter, still maintains that relation to a plurality of wives, although, from
the date of the passage of the act of March 22, 1882, until the day he offers
to register and to vote, he may not in fact have cohabited with more than one
woman. Without regard to the question whether, at the time he entered into such
relation, it was a prohibited and punishable offense, or whether, by reason of
lapse of time since its commission, a prosecution for it may not be barred, if
he still maintains the relation, he is a bigamist or polygamist, because that
is the status which the fixed habit and practice of his living has established.
He has a plurality of wives,--more than one woman **288 whom he recognizes
as a wife,--of whose children he is the acknowledged father, and whom, with their
children, he maintains as a family, of which he is the head. And this status
as to several wives may well continue to exist as a practical relation, although
for a period he may not in fact cohabit with more than one; for that is quite
consistent with the constant recognition of the same relation to many, accompanied
with a possible intention to renew cohabitation with one or more of the others
when it may be convenient. It is not, therefore, because the person has committed
the offense of bigamy or polygamy at some previous time, in violation of some
existing statute, and as an additional punishment for its commission, that he
is disfranchised by the act of congress of March 22, 1882, nor because he is guilty
of the offense as defined and punished by the terms of that act; but because,
having at some time entered into a bigamous or polygamous relation, by a marriage
with a second or third wife while the first was living, he still maintains it,
and has not dissolved it, although for the time being the restricts actual cohabitation
he restricts actual cohabitation actual cohabitation with all, and be still as
much as ever a bigamist or a polygamist. He can only cease to be such when he
has finally and fully dissolved, in some effective manner, which we are not called
on here to point out, the very relation of husband to several wives which constitutes
the forbidden status he has previously assumed. Cohabitation is but one
of the many incidents to the marriage relation. It is *74 not essential
to it. One man, where such a system has been tolerated and practiced, may have
several establishments, each of which may be the home of a separate family, none
of which he himself may dwell in or even visit. The statute makes an express distinction
between bigamists and polygamists on the one hand, and those who cohabit with
more than one woman on the other; whereas, if cohabitation with several wives
was essential to the description of those who are bigamists or polygamists, those
words in the statute would be superflous and unnecessary. It follows, therefore,
that any person having several wives is a bigamist or polygamist in the sense
of the act of March 22, 1882, although since the date of its passage he may not
have cohabited with more than one of them.'
the spirit of this interpretation, a man cohabits with more than one woman, in
the sense of sections 3, 5, and 8 of the act, when, holding out to the world two
women as his wives, by his language or conduct, or both, he lives in the house
with them, and eats at the table of each a portion of his time, although he may
not occupy the same bed or sleep in the same room with either of them, or actually
have sexual intercourse with either of them. He holds two women out to the world
as his wives by his conduct, when, being the recognized and reputed husband of
each, so understood to be by the two wives, and by the son of one of them, and
by the son of the third reputed wife, he maintains the two wives and the children
of each, all in the same house with himself, and regularly eats at the table of
each, and acts as the head of the two families.
meaning of the phrase 'cohabit with more than one woman,' in the statute, is in
consonance with a recognized definition of the word 'cohabit.' In Webster 'cohabit'
is defined thus: '(1) To dwell with; to inhabit or reside in company, or in the
same place or country. (2) To dwell or live together as husband and wife.' In
Worcester it is defined thus: '(1) To dwell with another in the same place. (2)
To live together as husband and wife.' The word is never used in its first meaning
in a criminal statute; and its second meaning is that to which its use in this
statute has relation. The contex *75 in which it is found, and the manifest
evils which gave rise to the special enactments in regard to 'cohabitation,' require
that the word should have the meaning which we have assigned to it. Bigamy and
polygamy might fail of proof for want of direct evidence of any marriage; but
cohabitation with more than one woman, in the sense proved in this case, was susceptible
**289 of the proof here given; and it was such offense as was here proved
that section 3 of the act was intended to reach,--the exhibition of all the
indicia of a marriage, a household, and a family, twice repeated. However,
in some divorce cases, and in reference to a question of the condonation of adultery,
the word 'cohabit' may have been used in the limited sense of sexual intercourse,
or, however its meaning may have been so limited by its context in other statutes,
it has no such meaning in the statute before us.
views of the proper construction of section 3 show that the evidence which the
court rejected was properly excluded, and that there was no error in the instructions
given to the jury, or in refusing to give those asked, aside from those which
were proper to have been given, but were covered by the instructions given. Nor
is the charge given open to the objection that the paragraphs in it which follow
the first are not confined to the time laid in the indictment.
is taken to the indictment because it does not allege that the defendant was a
male person; section 3 making the offense it specifies punishable only when committed
by a male person. By the criminal procedure act of the territory of Utah, passed
February 22, 1878, and which was in force from and after March 10, 1878, (Laws
1878, p. 91,) it is provided as follows:
148. All the forms of pleading in criminal actions, and the rules by which the
sufficiency of pleadings is to be determined, are those prescribed by this act.
149. The first pleading on the part of the people is the indictment.
150. The indictment must contain (1) the title of the action, specifying the name
of the court of which the indictment is presented, and the names of the parties.
*76 (2) A clear and concise statement of the acts or omissions constituting
the offense, with such particulars of the time, place, person, and property as
will enable the defendant to understand distinctly the character of the offense
complained of, and answer the indictment. It must be substantially in the following
form: TERRITORY OF UTAH--IN THE ___ JUDICIAL DISTRICT COURT. The People of
the Territory of Utah against A. B. A. B. is accused by the grand jury
of this court, by this indictment, of the crime of [giving its legal appellation,
such as murder, arson, or the like, or designating it as felony or misdemeanor]
committed as follows: The said A. B., on the ___ day of ___, A. D. eighteen ___,
at the county of ___, [here set forth the act or omission charged as an offense.]
151. It must be direct and certain as it regards (1) the party charged; (2) the
offense charged; (3) the particular circumstances of the offense.'
156. The words used in an indictment are construed in their usual acceptance in
common language, except such words and phrases as are defined by law, which are
construed according to their legal meaning.
157. Words used in a statute to define a public offense need not be strictly pursued
in the indictment, but other words conveying the same meaning may be used.
158. The indictment is suffient
158. The indictment is sufficient (1) that it is entitled in a court having authority
to receive it, though the name of the court be not stated; (2) that it was found
by a grand jury of the district in which the court was held; (3) that the defendant
is named, or, if his name cannot be discovered, that he is described by a fictitious
name, with a statement that his true name is to the jury unknown; (4) that the
offense committed was within the jurisdiction of the court, and is triable therein;*77
(5) that the offense was committed at some time prior to the time of finding the
indictment; (6) that the act or omission charged as the offense is clearly and
distinctly set forth, without repetition, and in such a manner as to enable the
court to understand what is intended, and to pronounce judgment upon a conviction,
according to the right of the case.'
'Sec. 190. The only pleading on the part of the defendant is either a demurrer
or a plea.'
192 provides that the defendant may demur to the indictment when it appears upon
the face thereof that it does not substantially conform to the requirements of
section 150; or that the facts stated do not constitute a public offense.
200 provides that when the objections mentioned in section 192 appear upon the
face of the indictment, they can only be taken by demurrer, except that the objection
that the facts stated do not constitute a public offense may be taken at the trial,
under the plea of not guilty, or, after the trial, in arrest of judgment.
479. Neither a departure from the form or mode prescribed by this act in respect
to any pleading or proceeding, nor an error or mistake therein, renders it invalid,
unless it has actually prejudiced the defendant, or tended to his prejudice, in
respect to a substantial right.'
under these provisions, the defendant, having pleaded to the indictment and not
demurred, must be held to have understood distinctly that the charge was against
a male person, as guilty of the offense complained of, the offense being one which
only a male person could commit; and the omission from the indictment of the allegation
that he was a male person could not have prejudiced him, or tended to his prejudice,
in respect to a substantial right.
same statutory provisions apply to the objection that the indictment contains
merely a charge of unlawful cohabitation with more than one woman, and does not
allege a cohabitation with the women as wives, or as persons held out as wives.
The defendant, having pleaded, and not demurred, it must be held, under section
150, that the statement of the acts constituting the *78 offense was such
as to enable him to understand distinctly the character of the offense complained
of, as that offense is now interpreted, and to answer the indictment. The objection
now made cannot be regarded as an objection that the facts do not constitute a
public offense, because the statement is in the words of the statute, and they,
as is now held, have but one meaning; and there could not have been any prejudice
to the defendant, or tendency to prejudice, in respect to a substantial right,
in not alleging any more pointedly that he cohabited with the women as wives.
connection with these statutory rules, section 3 of the act of congress makes
the offense a misdemeanor. In U. S. v. Mills, 7 Pet. 138, 142, it
was said by this court: 'The general rule is that in indictments for misdemeanors
created by statute, it is sufficient to charge the offense in the words of the
statute. * * * But in all cases the offense must be set forth with clearness,
and all necessary certainty to apprise the accused of the crime with which he
stands charged.' These principles were applied to a case of misdemeanor, in
U. S. v. Britton, 107 U. S. 655, S. C. 2 Sup. Ct. Rep. 512, and an
indictment was held sufficient because it embodied the language of the statute,
and that language covered every element of the crime, and thus the offense created
by the statute was set forth with sufficient certainty, so as to give the defendant
clear notice of the charge he was called on to defend. That case was distinguished
by the court from U. S. v. Carll, 105 U. S. 611, as this is distinguishable.
In Carll's Case, the statute made it an offense to pass a forged obligation
of the United States, with intent to defraud, and the punishment was a fine and
imprisonment at hard labor. The question arose, on a motion in arrest of judgment,
whether the indictment was sufficient; it setting forth the offense in the language
of the statute, without further alleging that the defendant knew the instrument
to be forged. This court held that the offense at which the statute was aimed
was similar to the commorlaw offense of uttering a forged bill; that, therefore,
knowledge that the instrument was forged was essential to make out the crime;
and that the uttering, **291 with intent to defraud, of an instrument in
fact counterfeit, *79 but supposed by the defendant to be genuine, though
within the words of the statute, would not be within its meaning and object. The
omitted allegation in that case--a knowledge of the forgery--was a separate, extrinsic
fact, not forming part of the intent to defraud, or of the uttering, or of the
fact of forgery; and, in the absence of that allegation, it was held that no crime
was charged. In other words, the case was of the class provided for under the
Utah statute, where the facts stated do not constitute a public offense. This,
as has been shown, is not that case. The word 'cohabit' has, in the statute, a
definite meaning, including every element of the offense created, as before defined.
The allegation of cohabiting with the two women as wives is not an extrinsic fact,
but is covered by the allegation of cohabiting with them.
strong appeal was made, in argument, to this court, not to uphold the rulings
of the trial court, because that would require a polygamous husband, not only
to cease living with his plural wives, but also to abandon the women themselves;
and this court was asked to indicate what the conduct of the husband towards them
must be in order to conform to the requirements of the law. It is sufficient to
say that, while that was done by the defendant in this case, after the passage
of the act of congress, was not lawful, no court can say, in advance, what particular
state of things will be lawful, further than this: that he must not cohabit with
more than one woman, in the sense of the word 'cohabit' as hereinbefore defined.
While congress has legitimated the issue of polygamous marriages, born before
Jaunary 1, 1883, and thus given to such issue claims upon their father which the
law will recognize and enforce, it has made no enactment in respect to any right
or status of a bigamous or polygamous wife. It leaves the conduct of the
man towards her to be regulated by considerations which, outside of section 3,
are not covered by the statute, and which must be dealt with judicially when properly
presented. Judgment affirmed.
dissent from the judgment of the court in this case. *80 I think that the
act of congress, when prohibiting cohabitation with more than one woman, meant
unlawful habitual sexual intercourse. It is, in my opinion, a strained construction
of a highly penal statute to hold that a man can be guilty, under that statute,
without the accompaniment of actual sexual connection. I know of no instance in
which the word 'cohabitation' has been used to describe a criminal offense where
it did not imply sexual intercourse.
Justice FIELD concurs with me.
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