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8 Otto 145,
25 L.Ed. 244
U.S.
Supreme Court
REYNOLDS
v. UNITED STATES
98
U.S. 145
October
Term, 1878
West
Headnotes
Criminal
Law k20
110k20
A criminal
intent is generally an element of crime, but every man is
presumed to intend the necessary and legitimate consequences
of what he knowingly does.
Criminal
Law k31
110k31
A belief
that particular law ought not to have been enacted, was
no defense in prosecution for violation of such law, though
such belief was part of defendant's professed religion.
Criminal
Law k32
110k32
Ignorance
of a fact may sometimes be taken as evidence of want of
criminal intent, but not ignorance of the law.
Criminal
Law k543(2)
110k543(2)
The
question whether witness is absent by defendant's procurement,
so as to authorize admission of evidence concerning testimony
of such witness at former trial, is practically one of fact,
to be settled as preliminary to the admission of secondary
evidence, and court's finding thereon has the effect of
a jury verdict and should not be disturbed unless error
is manifest.
Criminal
Law k543(2)
110k543(2)
In
bigamy prosecution, evidence concerning defendant's refusal
to assist in serving of subpoena on defendant's second wife,
who lived with defendant, held to cast upon defendant
burden of showing that he had not been instrumental in concealing
or keeping her away, and to authorize admission of evidence
concerning her testimony at former trial.
Criminal
Law k655(1)
110k655(1)
Every
appeal by the trial court to the jury's passions or prejudices
should be promptly rebuked, and reviewing court must take
care that wrong is not done in that way.
Criminal
Law k662.60
110k662.60
(Formerly
110k662(6))
In
a criminal prosecution, the accused is in no condition to
assert that his constitutional right to be confronted with
the witnesses against him has been violated, by allowing
competent evidence of the testimony which they gave on a
previous trial between the United States and himself upon
the same issue, when they are absent by his procurement,
or when enough has been proved to cast upon him the burden
of showing, and he, having full opportunity therefor, fails
to show, that he has not been instrumental in concealing
them, or in keeping them away. Such evidence is admissible.
Criminal
Law k1043(1)
110k1043(1)
Where
it is apparent from the record that the challenge of a petit
juror, if it had been made by the United States for favor,
should have been sustained, the judgment against the prisoner
will not be reversed simply because the challenge was in
form for cause.
Criminal
Law k1133
110k1133
Where
error in trial court's sentence, in requiring imprisonment
to be at hard labor though statute provided for imprisonment
only, was not assigned for error on the original hearing
by United States Supreme Court, court might decline to consider
it on rehearing, but where such irregularity appeared on
the face of the record, Supreme Court vacated its former
judgment of affirmance, and reversed the judgment for the
purpose of correcting such error.
Criminal
Law k1152(2)
110k1152(2)
The
trial court's finding upon question of juror's partiality
ought not to be set aside by reviewing court unless the
error is manifest, when tested by rules no less stringent
than those applied in motions for new trial because verdict
is against the evidence, and it must be made clearly to
appear that upon the evidence, the court ought to have found
that juror had formed an opinion, and that the law left
nothing to the court's conscience or discretion.
Grand
Jury k3
193k3
Rev.St.
§ 808, 28 U.S.C.A. § 419, providing for impaneling grand
juries, and prescribing that they shall consist of not less
than 16, nor more than 23, persons, applies only to the
circuit and the district courts of the United States. Territorial
courts are left free to act in obedience to the requirements
of the territorial laws in force for the time being; and
hence an indictment may be found in a district court of
Utah by a grand jury of 15 persons, impaneled pursuant to
the laws of that territory.
Jury
k97(1)
230k97(1)
In
prosecution for bigamy, challenge of jurors on ground that
they had been living in polygamy was good for favor, if
not for principal cause.
Jury
k97(1)
230k97(1)
To
be "impartial", a juror must be indifferent as he stands
unsworn. U.S.C.A. Const.Amend. 6.
Jury
k99
230k99
(Formerly
230k99(2))
It
is good ground for challenge for principal cause that a
juror has formed an opinion on the issue to be tried, but
such opinion must be founded on some evidence, and be more
than a mere impression or merely hypothetical.
Jury
k99.5
230k99.5
(Formerly
230k99(6))
The
fact that juror had not expressed his opinion concerning
issue to be tried is important only as tending to show that
he had not formed a disqualifying opinion, and positive
and decided opinion renders juror incompetent even if it
had not been expressed.
Jury
k103(3)
230k103(3)
A petit
juror in a criminal case having testified on his voir dire
that he had formed an opinion, although not upon evidence
produced in court, as to the question of the innocence or
guilt of the prisoner, but that he had not expressed it,
and did not think that it would influence his verdict, he
was challenged by the prisoner for cause, and the challenge
was overruled by the court. Held, that the action
of the court was not erroneous.
Jury
k131(4)
230k131(4)
To
make out the existence of a principal cause of challenge,
juror may be examined on his voir dire, and asked any questions
that do not tend to his infamy or disgrace.
Jury
k133
230k133
The
question of whether opinion formed by juror renders juror
subject to challenge for principal cause is one of mixed
law and fact, to be tried upon the evidence.
Bigamy
k1
55k1
Rev.St.
§ 5352, 18 U.S.C.A. § 513, defining and providing for the
punishment of bigamy, is not in conflict with the constitutional
provision against the making of laws respecting religion.
Bigamy
k2
55k2
On
a trial for polygamy, evidence was offered by defendant
to show that polygamous marriage was a part of his religion.
Held, that such evidence was not admissible, and has
no foundation for its admission in either justice, reason,
or law.
Bigamy
k14
55k14
In
the trial of a criminal prosecution for bigamy, the court
told the jury to "consider what are to be the consequences
to the innocent victims of this delusion [the doctrine of
polygamy]. As this contest goes on, they multiply, and there
are pure-minded women and there are innocent children,-innocent
in a sense even beyond the degree of the innocence of childhood
itself. These are to be the sufferers; and as jurors fail
to do their duty, and as these cases come up in the territory
of Utah, just so do these victims multiply and spread themselves
over the land." Held, that the charge was not improper.
Constitutional
Law k84.5(1)
92k84.5(1)
(Formerly
92k84)
A party's
religious belief cannot be accepted as a justification for
his committing an overt act made criminal by the law of
the land. Where, therefore, the prisoner, knowing that his
wife was living, married again in Utah, and when indicted
and tried therefor, set up that the church whereto he belonged
enjoined upon its male members to practice polygamy, and
that he, with the sanction of the recognized authorities
of the church, and by a ceremony performed pursuant to its
doctrines, did marry again, held, that the court
properly refused to charge the jury that he was entitled
to an acquittal, although they should find that he had contracted
such second marriage pursuant to, and in conformity with,
what he believed at the time to be a religious duty.
Constitutional
Law k84.1
92k84.1
(Formerly
92k84)
The
true distinction between what properly belongs to the church
and what belongs to the state is found in the preamble of
the Virginia statute for religious freedom, reciting that
civil magistrate should not be suffered to intrude his powers
into the field of opinion and to restrain the profession
or propagation of principles on supposition of their ill
tendency, and that civil officers should interfere only
when principles break out into overt acts against peace
and good order. 12 Hening's Stat. 84.
Constitutional
Law k84.5(1)
92k84.5(1)
(Formerly
92k84)
Section
5352 of the Revised Statutes, 18 U.S.C.A. § 513, which declares
bigamy committed in the territories a crime against the
United States, and prescribes its punishment, is in all
respects constitutional and valid.
Constitutional
Law k84.1
92k84.1
(Formerly
92k84)
In
order to ascertain the meaning of the word "religion" as
used in constitutional prohibition against interfering with
religious freedom, court should consider the history of
the times in the midst of which the provision was adopted.
Constitutional
Law k84.1
92k84.1
(Formerly
92k84)
Under
constitutional provision against establishment of religion
or prohibiting free exercise thereof, Congress was deprived
of all legislative power over mere opinion, but was left
free to reach actions which were in violation of social
duties or subversive of good order.
Constitutional
Law k84.1
92k84.1
(Formerly
92k84)
Though
laws cannot interfere with mere religious belief and opinions,
they may interfere with practices.
Federal
Courts k1021
170Bk1021
(Formerly
106k428)
The
statute giving district courts of the Territory of Utah
the same jurisdiction in all cases arising under the constitution
and laws of the United States as is vested in the circuit
and district courts of the United States does not make them
circuit and district courts of the United States. Rev.Stat.
§ 1910.
ERROR
to the Supreme Court of the Territory of Utah.
This
is an indictment found in the District Court for the third
judicial district of the Territory of Utah, charging George
Reynolds with bigamy, in violation of sect. 5352 of the
Revised Statutes, which, omitting its exceptions, is as
follows:----
'Every
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 $500, and by imprisonment for a term of not
more than five years.'
The
prisoner pleaded in abatement that the indictment was not
found by a legal grand jury, because fifteen persons, and
no more, were impanelled and sworn to serve as a grand jury
at the term of the court during which the indictment was
found, whereas sect. 808 of the Revised Statutes of the
United States enacts that every grand jury impanelled before
any District or Circuit Court shall consist of not less
than sixteen persons.
An
act of the legislature of Utah of Feb. 18, 1870, provides
that the court shall impanel fifteen men to serve as a grand
jury. Compiled Laws of Utah, ed. of 1876, p. 357, sect.
4.
The
court overruled the plea, on the ground that the territorial
enactment governed.
The
prisoner then pleaded not guilty. Several jurors were examined
on their voire dire by the district attorney. Among
them was Eli Ransohoff, who, in answer to the question,
'Have you formed or expressed an opinion as to the guilt
or innocence of the prisoner at the bar?' said, 'I have
expressed an opinion by reading the papers with the reports
of the trial.'
Q.
'Would that opinion influence your verdict in hearing the
evidence?'
A.
'I don't think it would.'
By
the defendant: 'You stated that you had formed some opinion
by reading the reports of the previous trial?'
A.
'Yes.'
Q.
'Is that an impression which still remains upon your mind?'*147
A.
'No; I don't think it does: I only glanced over it, as everybody
else does.'
Q.
'Do you think you could try the case wholly uninfluenced
by any thing?'
A.
'Yes.'
Charles
Read, called as a juror, was asked by the district attorney,
'Have you formed or expressed any opinion as to the guilt
or innocence of this charge?'
A.
'I believe I have formed an opinion.'
By
the court: 'Have you formed and expressed an opinion?'
A.
'No, sir; I believe not.'
Q.
'You say you have formed an opinion?'
A.
'I have.'
Q.
'Is that based upon evidence?'
A.
'Nothing produced in court.'
Q.
'Would that opinion influence your verdict?'
A.
'I don't think it would.'
By
defendant: 'I understood you to say that you had formed
an opinion, but not expressed it.'
A.
'I don't know that I have expressed an opinion: I have formed
one.'
Q.
'Do you now entertain that opinion?'
A.
'I do.'
The
defendant challenged each of these jurors for cause. The
court overruled the challenge, and permitted them to be
sworn. The defendant excepted.
The
court also, when Homer Brown was called as a juror, allowed
the district attorney to ask him the following questions:
Q. 'Are you living in polygamy?' A. 'I would
rather not answer that.' The court instructed the witness
that he must answer the question, unless it would criminate
him. By the district attorney: 'You understand the conditions
upon which you refuse?' A. 'Yes, sir.'--Q.
'Have you such an opinion that you could not find a verdict
for the commission of that crime?' A. 'I have no
opinion on it in this particular case. I think under the
evidence and the law I could render a verdict accordingly.'
Whereupon the United States challenged the said Brown for
favor, which challenge was sustained by the court, and the
defendant excepted.*148
John
W. Snell, also a juror, was asked by the district attorney
on voire dire: Q. 'Are you living in polygamy?'
A. 'I decline to answer that question.'--Q. 'On
what ground?' A. 'It might criminate myself; but
I am only a fornicator.' Whereupon Snell was challenged
by the United States for cause, which challenge was sustained,
and the defendant excepted.
After
the trial commenced, the district attorney, after proving
that the defendant had been married on a certain day to
Mary Ann Tuddenham, offered to prove his subsequent marriage
to one Amelia Jane Schofield during the lifetime of said
Mary. He thereupon called one Pratt, the deputy marshal,
and showed him a subpoena for witnesses in this case, and
among other names thereon was the name of Mary Jane Schobold,
but no such name as Amelia Jane Schofield. He testified
that this subpoena was placed in his hands to be served.
Q.
'Did you see Mr. Reynolds when you went to see Miss Schofield?'
A.
'Yes, sir.'
Q.
'Who did you inquire for?'
A.
'I inquired for Mary Jane Schofield, to the best of my knowledge.
I will state this, that I inserted the name in the subpoena,
and intended it for the name of the woman examined in this
case at the former term of the court, and inquired for Mary
Jane Schofield, or Mrs. Reynolds, I do not recollect certainly
which.'
Q.
'State the reply.'
A.
'He said she was not at home.'
Q.
'Did he say any thing further.'
A.
'I asked him then where I could find her. I said, 'Where
is she? And he said, 'You will have to find out.''
Q.
'Did he know you to be a deputy marshal?'
A.
'Yes, sir.'
Q.
'Did you tell him what your business was as deputy marshal?'
A.
'I don't remember now: I don't think I did.'
Q.
'What else did he say?'*149
A.
'He said, just as I was leaving, as I understood it, that
she did not appear in this case.'
The
court then ordered a subpoena to issue for Amelia Jane Schofield,
returnable instanter.
Upon
the following day, at ten o'clock A.M., the said subpoena
for the said witness having issued about nine o'clock P.M.
of the day before, the said Arthur Pratt was again called
upon, and testified as follows:----
Q.
(By district attorney.) 'State whether you are the officer
that had subpoena in your hands.' (Exhibiting subpoena last
issued, as above set forth.)
A.
'Yes, sir.'
Q.
'State to the court what efforts you have made to serve
it.'
A.
'I went to the residence of Mr. Reynolds, and a lady was
there, his first wife, and she told me that this woman was
not there; that that was the only home that she had, but
that she hadn't been there for two or three weeks. I went
again this morning, and she was not there.'
Q.
'Do you know any thing about her home,--where she resides?'
A.
'I know where I found her before.'
Q.
'Where?'
A.
'At the same place.'
Q.
'You are the deputy marshal that executed the process of
the court?'
A.
'Yes, sir.'
Q.
'Repeat what Mr. Reynolds said to you when you went with
the former subpoena introduced last evening.'
A.
'I will state that I put her name on the subpoena myself.
I know the party, and am well acquainted with her, and I
intended it for the same party that I subpoenaed before
in this case. He said that she was not in, and that I could
get a search-warrant if I wanted to search the house. I
said, 'Will you tell me where she is?' He said, 'No; that
will be for you to find out.' He said, just as I was leaving
the house,--I don't remember exactly what it was, but my
best recollection is that he said she would not appear in
this case.'*150
Q.
'Can't you state that more particularly?'
A.
'I can't give you the exact words, but I can say that was
the purport of them.'
Q.
'Give the words as nearly as you can.'
A.
'Just as I said, I think those were his words.'
The
district attorney then offered to prove what Amelia Jane
Schofield had testified to on a trial of another indictment
charging the prisoner with bigamy in marrying her; to which
the prisoner objected, on the ground that a sufficient foundation
had not been laid for the introduction of the evidence.
A.
S. Patterson, having been sworn, read, and other witnesses
stated, said Amelia's testimony on the former trial, tending
to show her marriage with the defendant. The defendant excepted
to the admission of the evidence.
The
court, in summing up to the jury, declined to instruct them,
as requested by the prisoner, that if they found that he
had married in pursuance of and conformity with what he
believed at the time to be a religious duty, their verdict
should be 'not guilty,' but instructed them that if he,
under the influence of a religious belief that it was right,
had 'deliberately married a second time, having a first
wife living, the want of consciousness of evil intent--the
want of understanding on his part that he was committing
crime--did not excuse him, but the law inexorably, in such
cases, implies criminal intent.'
The
court also said: 'I think it not improper, in the discharge
of your duties in this case, that you should consider what
are to be the consequences to the innocent victims of this
delusion. As this contest goes on, they multiply, and there
are pure-minded women and there are innocent children,--innocent
in a sense even beyond the degree of the innocence of childhood
itself. These are to be the sufferers; and as jurors fail
to do their duty, and as these cases come up in the Territory,
just so do these victims multiply and spread themselves
over the land.'
To
the refusal of the court to charge as requested, and to
the charge as given, the prisoner excepted. The jury found
him guilty, as charged in the indictment; and the judgment
that he be imprisoned at hard labor for a term of two years,
and pay *151 a fine of $500, rendered by the District
Court, having been affirmed by the Supreme Court of the
Territory, he sued out this writ of error.
The
assignments of error are set out in the opinion of the court.
Mr.
George W. Biddle and Mr. Ben Sheeks for the plaintiff
in error.
First,
The jury was improperly drawn. Two of the jurors were challenged
for cause by the defendant below, because they admitted
that they had formed, and still entertained, an opinion
upon the guilt or innocence of the prisoner. The holding
by a juror of any opinions which would disqualify him from
rendering a verdict in accordance with the law of the land,
is a valid objection to his serving.
An
opinion based merely upon a hypothetical case, as that 'if
so and so is true, the prisoner is guilty,' is not always
sufficient; but where the opinion is as to the actual
fact of guilt or innocence, it is a disqualification,
according to all the authorities. Burr's Trial, 414, 415;
United States v. Wilson, 1 Baldw. 83; Ex parte
Vermilyea, 6 Cow. (N. Y.) 563; The People v.
Mather, 4 Wend. (N. Y.) 238; Cancemi v. People,
16 N. Y. 502; Fouts v. The State, 11 Ohio
St. 472; Neely v. The People, 23 Ill. 685;
Schoeffler v. The State, 3 Wis. 831; Trimble
v. The State, 2 Greene (Iowa), 404; Commonwealth
v. Lesher, 17 Serg. & R. (Pa.) 155; Staup
v. Commonwealth, 74 Pa. St. 458; Armistead's Case,
11 Leigh (Va.), 658; Stewart v. The State,
13 Ark. 740.
It
was clearly erroneous for the prosecution to ask several
of the jurymen, upon voire dire, whether they were
living in polygamy; questions which tend to disgrace the
person questioned, or to render him amenable to a criminal
prosecution, have never been allowed to be put to a juror.
Anonymous, Salk. 153; Bacon, Abr., tit. Juries, 12(f);
7 Dane, Abr. 334; Hudson v. The State, 1 Blackf.
(Ind.) 319.
Second,
The proof of what the witness, Amelia Jane Schofield,
testified to in a former trial, under another indictment,
should not have been admitted. The constitutional right
of a prisoner to confront the witness and cross-examine
him is not to be abrogated, unless it be shown that the
witness is dead, or *152 out of the jurisdiction
of the court; or that, having been summoned, he appears
to have been kept away by the adverse party on the trial.
It appeared not only that no such person as Amelia Jane
Schofield had been subpoenaed, but that no subpoena
had ever been taken out for her. An unserved subpoena with
the name of Mary Jane Schobold was shown.
At nine o'clock in the evening, during the trial, a new
subpoena was issued; and on the following morning, with
no attempt to serve it beyond going to the prisoner's usual
residence and inquiring for her, the witness Patterson was
allowed to read from a paper what purported to be statements
made by Amelia Jane Schofield on a former trial.
No proof was offered as to the genuineness of the paper
or its origin, nor did the witness testify to its contents
of his own knowledge. This is in the teeth of the ruling
in United States v. Wood (3 Wash. 440), and
the rule laid down in all the American authorities. Richardson
v. Stewart, 2 Serg. & R. (Pa.) 84; Chess
v. Chess, 17 id. 409; Huidekopper v. Cotton,
3 Watts (Pa.) 56; Powell v. Waters, 17 Johns.
(N. Y.) 176; Cary v. Sprague, 12 Wend. (N.
Y.) 45; The People v. Newman, 5 Hill (N. Y.),
295; Brogy v. The Commonwealth, 10 Gratt.
(Va.) 722; Bergen v. The People, 17 Ill. 426;
Dupree v. The State, 33 Ala. 380.
Third,
As to the constitutionality of the Poland Bill. Rev. Stat.,
sect. 5352. Undoubtedly Congress, under art. 4, sect. 3,
of the Constitution, which gives 'power to dispose of and
make all needful rules and regulations respecting the territory
or other property belonging to the United States,' and under
the decisions of this court upon it, may legislate over
such territory, and regulate the form of its local government.
But its legislation can be neither exclusive nor arbitrary.
The power of this government to obtain and hold territory
over which it might legislate, without restriction, would
be inconsistent with its own existence in its present form.
There is always an excess of power exercised when the Federal
government attempts to provide for more than the assertion
and preservation of its rights over such territory, and
interferes by positive enactment with the social and domestic
life of its inhabitants and their internal police. The offence
prohibited by sect. 5352 is not a malum in se; it
is not prohibited by the decalogue; and, if it be said
*153 that its prohibition is to be found in the teachings
of the New Testament, we know that a majority of the people
of this Territory deny that the Christian law contains any
such prohibition.
The
Attorney-General and The Solicitor-General, contra.
MR.
CHIEF JUSTICE WAITE delivered the opinion of the court.
The
assignments of error, when grouped, present the following
questions:----
1.
Was the indictment bad because found by a grand jury of
less than sixteen persons?
2.
Were the challenges of certain petit jurors by the accused
improperly overruled?
3.
Were the challenges of certain other jurors by the government
improperly sustained?
4.
Was the testimony of Amelia Jane Schofield, given at a former
trial for the same offence, but under another indictment,
improperly admitted in evidence?
5.
Should the accused have been acquitted if he married the
second time, because he believed it to be his religious
duty?
6.
Did the court err in that part of the charge which directed
the attention of the jury to the consequences of polygamy?
These
questions will be considered in their order.
1.
As to the grand jury.
The
indictment was found in the District Court of the third
judicial district of the Territory. The act of Congress
'in relation to courts and judicial officers in the Territory
of Utah,' approved June 23, 1874 (18 Stat. 253), while regulating
the qualifications of jurors in the Territory, and prescribing
the mode of preparing the lists from which grand and petit
jurors are to be drawn, as well as the manner of drawing,
makes no provision in respect to the number of persons of
which a grand jury shall consist. Sect. 808, Revised Statutes,
requires that a grand jury impanelled before any district
or circuit court of the United States shall consist of not
less than sixteen nor more than twenty-three persons, while
a statute of the Territory limits the number in the district
courts of the Territory *154 to fifteen. Comp. Laws
Utah, 1876, 357. The grand jury which found this indictment
consisted of only fifteen persons, and the question to be
determined is, whether the section of the Revised Statutes
referred to or the statute of the Territory governs the
case.
By
sect. 1910 of the Revised Statutes the district courts of
the Territory have the same jurisdiction in all cases arising
under the Constitution and laws of the United States as
is vested in the circuit and district courts of the United
States; but this does not make them circuit and district
courts of the United States. We have often so decided.
American Insurance Co. v. Canter, 1 Pet. 511;
Benner et al. v. Porter, 9 How. 235; Clinton
v. Englebrecht, 13 Wall. 434. They are courts of
the Territories, invested for some purposes with the powers
of the courts of the United States. Writs of error and appeals
lie from them to the Supreme Court of the Territory, and
from that court as a territorial court to this in some cases.
Sect.
808 was not designed to regulate the impanelling of grand
juries in all courts where offenders against the laws of
the United States could be tried, but only in the circuit
and district courts. This leaves the territorial courts
free to act in obedience to the requirements of the territorial
laws in force for the time being. Clinton v. Englebrecht,
supra; Hornbuckle v. Toombs, 18 Wall. 648. As
Congress may at any time assume control of the matter, there
is but little danger to be anticipated from improvident
territorial legislation in this particular. We are therefore
of the opinion that the court below no more erred in sustaining
this indictment than it did at a former term, at the instance
of this same plaintiff in error, in adjudging another bad
which was found against him for the same offence by a grand
jury composed of twenty- three persons. 1 Utah, 226.
2.
As to the challenges by the accused.
By
the Constitution of the United States (Amend. VI.), the
accused was entitled to a trial by an impartial jury. A
juror to be impartial must, to use the language of Lord
Coke, 'be indifferent as he stands unsworn.' Co. Litt. 155
b. Lord Coke also says that a principal cause of challenge
is 'so called because, if it be found true, it standeth
sufficient of itself, without *155 leaving any thing
to the conscience or discretion of the triers' (id. 156
b); or, as stated in Bacon's Abridgment, 'it is grounded
on such a manifest presumption of partiality, that, if found
to be true, it unquestionably sets aside the . . . juror.'
Bac. Abr., tit. Juries, E. 1. 'If the truth of the matter
alleged is admitted, the law pronounces the judgment; but
if denied, it must be made out by proof to the satisfaction
of the court or the triers.' Id. E. 12. To make out the
existence of the fact, the juror who is challenged may be
examined on his voire dire, and asked any questions
that do not tend to his infamy or disgrace.
All
of the challenges by the accused were for principal cause.
It is good ground for such a challenge that a juror has
formed an opinion as to the issue to be tried. The courts
are not agreed as to the knowledge upon which the opinion
must rest in order to render the juror incompetent, or whether
the opinion must be accompanied by malice or ill-will; but
all unite in holding that it must be founded on some evidence,
and be more than a mere impression. Some say it must be
positive (Gabbet, Criminal Law, 391); others, that it must
be decided and substantial (Armistead's Case, 11
Leigh (Va.), 659; Wormley's Case, 10 Gratt. (Va.)
658; Neely v. The People, 13 Ill. 685); others,
fixed (State v. Benton, 2 Dev. & B. (N.
C.) L. 196); and, still others, deliberate and settled (Staup
v. Commonwealth, 74 Pa. St. 458; Curley v.
Commonwealth, 84 id. 151). All concede, however, that,
if hypothetical only, the partiality is not so manifest
as to necessarily set the juror aside. Mr. Chief Justice
Marshall, in Burr's Trial (1 Burr's Trial, 416),
states the rule to be that 'light impressions, which may
fairly be presumed to yield to the testimony that may be
offered, which may leave the mind open to a fair consideration
of the testimony, constitute no sufficient objection to
a juror; but that those strong and deep impressions which
close the mind against the testimony that may be offered
in opposition to them, which will combat that testimony
and resist its force, do constitute a sufficient objection
to him.' The theory of the law is that a juror who has formed
an opinion cannot be impartial. Every opinion which he may
entertain need not necessarily have that effect. In these
days of newspaper enterprise and universal education, every
case of public interest is almost, as a matter of necessity,
*156 brought to the attention of all the intelligent
people in the vicinity, and scarcely any one can be found
among those best fitted for jurors who has not read or heard
of it, and who has not some impression or some opinion in
respect to its merits. It is clear, therefore, that upon
the trial of the issue of fact raised by a challenge for
such cause the court will practically be called upon to
determine whether the nature and strength of the opinion
formed are such as in law necessarily to raise the presumption
of partiality. The question thus presented is one of mixed
law and fact, and to be tried, as far as the facts are concerned,
like any other issue of that character, upon the evidence.
The finding of the trial court upon that issue ought not
to be set aside by a reviewing court, unless the error is
manifest. No less stringent rules should be applied by the
reviewing court in such a case than those which govern in
the consideration of motions for new trial because the verdict
is against the evidence. It must be made clearly to appear
that upon the evidence the court ought to have found the
juror had formed such an opinion that he could not in law
be deemed impartial. The case must be one in which it is
manifest the law left nothing to the 'conscience or discretion'
of the court.
The
challenge in this case most relied upon in the argument
here is that of Charles Read. He was sworn on his voire
dire; and his evidence, [FN1] taken as a whole, shows
that he 'believed' he had formed an opinion which he had
never expressed, but which he did not think would influence
his verdict on hearing the testimony. We cannot think this
is such a manifestation of partiality as to leave nothing
to the 'conscience or discretion' of the triers. The reading
of the evidence leaves the impression that the juror had
some hypothetical opinion about the case, but it falls far
short of raising a manifest presumption of partiality. In
considering such questions in a reviewing court, we ought
not to be unmindful of the fact we have so often observed
in our experience, that jurors not unfrequently seek to
excuse themselves on the ground of having formed an opinion,
when, on examination, it turns out that no real disqualification
exists. In such cases the manner of the *157 juror
while testifying is oftentimes more indicative of the real
character of his opinion than his words. That is seen below,
but cannot always be spread upon the record. Care should,
therefore, be taken in the reviewing court not to reverse
the ruling below upon such a question of fact, except in
a clear case. The affirmative of the issue is upon the challenger.
Unless he shows the actual existence of such an opinion
in the mind of the juror as will raise the presumption of
partiality, the juror need not necessarily be set aside,
and it will not be error in the court to refuse to do so.
Such a case, in our opinion, was not made out upon the challenge
of Read. The fact that he had not expressed his opinion
is important only as tending to show that he had not formed
one which disqualified him. If a positive and decided opinion
had been formed, he would have been incompetent even though
it had not been expressed. Under these circumstances, it
is unnecessary to consider the case of Ransohoff, for it
was confessedly not as strong as that of Read.
3.
As to the challenges by the government.
The
questions raised upon these assignments of error are not
whether the district attorney should have been permitted
to interrogate the jurors while under examination upon their
voire dire as to the fact of their living in polygamy.
No objection was made below to the questions, but only to
the ruling of the court upon the challenges after the testimony
taken in answer to the questions was in. From the testimony
it is apparent that all the jurors to whom the challenges
related were or had been living in polygamy. It needs no
argument to show that such a jury could not have gone into
the box entirely free from bias and prejudice, and that
if the challenge was not good for principal cause, it was
for favor. A judgment will not be reversed simply because
a challenge good for favor was sustained in form for cause.
As the jurors were incompetent and properly excluded, it
matters not here upon what form of challenge they were set
aside. In one case the challenge was for favor. In the courts
of the United States all challenges are tried by the court
without the aid of triers (Rev. Stat. sect. 819), and we
are not advised that the practice in the territorial courts
of Utah is different.
*158
4. As to the admission of evidence to prove what was sworn
to by Amelia Jane Schofield on a former trial of the accused
for the same offence but under a different indictment.
The
Constitution gives the accused the right to a trial at which
he should be confronted with the witnesses against him;
but if a witness is absent by his own wrongful procurement,
he cannot complain if competent evidence is admitted to
supply the place of that which he has kept away. The Constitution
does not guarantee an accused person against the legitimate
consequences of his own wrongful acts. It grants him the
privilege of being confronted with the witnesses against
him; but if he voluntarily keeps the witnesses away, he
cannot insist on his privilege. If, therefore, when absent
by his procurement, their evidence is supplied in some lawful
way, he is in no condition to assert that his constitutional
rights have been violated.
In
Lord Morley's Case (6 State Trials, 770), as long ago
as the year 1666, it was resolved in the House of Lords
'that in case oath should be made that any witness, who
had been examined by the coroner and was then absent, was
detained by the means or procurement of the prisoner, and
the opinion of the judges asked whether such examination
might be read, we should answer, that if their lordships
were satisfied by the evidence they had heard that the witness
was detained by means or procurement of the prisoner, then
the examination might be read; but whether he was detained
by means or procurement of the prisoner was matter of fact,
of which we were not the judges, but their lordships.' This
resolution was followed in Harrison's Case (12 id.
851), and seems to have been recognized as the law in England
ever since. In Regina v. Scaife (17 Ad. &
El. N. S. 242), all the judges agreed that if the prisoner
had resorted to a contrivance to keep a witness out of the
way, the deposition of the witness, taken before a magistrate
and in the presence of the prisoner, might be read. Other
cases to the same effect are to be found, and in this country
the ruling has been in the same way. Drayton v.
Wells, 1 Nott & M. (S. C.) 409; Williams
v. The State, 19 Ga. 403. So that now, in the leading
text-books, it is laid down that if a witness is kept away
by the adverse party, *159 his testimony, taken on
a former trial between the same parties upon the same issues,
may be given in evidence. 1 Greenl. Evid., sect. 163; 1
Taylor, Evid., sect. 446. Mr. Wharton (1 Whart. Evid., sect.
178) seemingly limits the rule somewhat, and confines it
to cases where the witness has been corruptly kept away
by the party against whom he is to be called, but in reality
his statement is the same as that of the others; for in
all it is implied that the witness must have been wrongfully
kept away. The rule has its foundation in the maxim that
no one shall be permitted to take advantage of his own wrong;
and, consequently, if there has not been, in legal contemplation,
a wrong committed, the way has not been opened for the introduction
of the testimony. We are content with this long-established
usage, which, so far as we have been able to discover, has
rarely been departed from. It is the outgrowth of a maxim
based on the principles of common honesty, and, if properly
administered, can harm no one.
Such
being the rule, the question becomes practically one of
fact, to be settled as a preliminary to the admission of
secondary evidence. In this respect it is like the preliminary
question of the proof of loss of a written instrument, before
secondary evidence of the contents of the instrument can
be admitted. In Lord Morley's Case (supra), it would
seem to have been considered a question for the trial court
alone, and not subject to review on error or appeal; but
without deeming it necessary in this case to go so far as
that, we have no hesitation in saying that the finding of
the court below is, at least, to have the effect of a verdict
of a jury upon a question of fact, and should not be disturbed
unless the error is manifest.
The
testimony shows that the absent witness was the alleged
second wife of the accused; that she had testified on a
former trial for the same offence under another indictment;
that she had no home, except with the accused; that at some
time before the trial a subpoena had been issued for her,
but by mistake she was named as Mary Jane Schobold; that
an officer who knew the witness personally went to the house
of the accused to serve the subpoena, and on his arrival
inquired for her, either by the name of Mary Jane Schofield
or Mrs. Reynolds; that he was tole by the accused she was
not at home; *160 that he then said, 'Will you tell
me where she is?' that the reply was 'No; that will be for
you to find out;' that the officer then remarked she was
making him considerable trouble, and that she would get
into trouble herself; and the accused replied, 'Oh, no;
she won't, till the subpoena is served upon her,' and then,
after some further conversation, that 'She does not appear
in this case.'
It
being discovered after the trial commenced that a wrong
name had been inserted in the subpoena, a new subpoena was
issued with the right name, at nine o'clock in the evening.
With this the officer went again to the house, and there
found a person known as the first wife of the accused. He
was told by her that the witness was not there, and had
not been for three weeks. He went again the next morning,
and not finding her, or being able to ascertain where she
was by inquiring in the neighborhood, made return of that
fact to the court. At ten o'clock that morning the case
was again called; and the foregoing facts being made to
appear, the court ruled that evidence of what the witness
had sworn to at the former trial was admissible.
In
this we see no error. The accused was himself personally
present in court when the showing was made, and had full
opportunity to account for the absence of the witness, if
he would, or to deny under oath that he had kept her away.
Clearly, enough had been proven to cast the burden upon
him of showing that he had not been instrumental in concealing
or keeping the witness away. Having the means of making
the necessary explanation, and having every inducement to
do so if he would, the presumption is that he considered
it better to rely upon the weakness of the case made against
him than to attempt to develop the strength of his own.
Upon the testimony as it stood, it is clear to our minds
that the judgment should not be reversed because secondary
evidence was admitted.
This
brings us to the consideration of what the former testimony
was, and the evidence by which it was proven to the jury.
It
was testimony given on a former trial of the same person
for the same offence, but under another indictment. It was
*161 substantially testimony given at another time in
the same cause. The accused was present at the time the
testimony was given, and had full opportunity of cross-examination.
This brings the case clearly within the well-established
rules. The cases are fully cited in 1 Whart. Evid., sect.
177.
The
objection to the reading by Mr. Patterson of what was sworn
to on the former trial does not seem to have been because
the paper from which he read was not a true record of the
evidence as given, but because the foundation for admitting
the secondary evidence had not been laid. This objection,
as has already been seen, was not well taken.
5.
As to the defence of religious belief or duty.
On
the trial, the plaintiff in error, the accused, proved that
at the time of his alleged second marriage he was, and for
many years before had been, a member of the Church of Jesús
Christ of Latter-Day Saints, commonly called the Mormon
Church, and a believer in its doctrines; that it was an
accepted doctrine of that church 'that it was the duty of
male members of said church, circumstances permitting, to
practise polygamy; . . . that this duty was enjoined by
different books which the members of said church believed
to be of divine origin, and among others the Holy Bible,
and also that the members of the church believed that the
practice of polygamy was directly enjoined upon the male
members thereof by the Almighty God, in a revelation to
Joseph Smith, the founder and prophet of said church; that
the failing or refusing to practise polygamy by such male
members of said church, when circumstances would admit,
would be punished, and that the penalty for such failure
and refusal would be damnation in the life to come.' He
also proved 'that he had received permission from the recognized
authorities in said church to enter into polygamous marriage;
. . . that Daniel H. Wells, one having authority in said
church to perform the marriage ceremony, married the said
defendant on or about the time the crime is alleged to have
been committed, to some woman by the name of Schofield,
and that such marriage ceremony was performed under and
pursuant to the doctrines of said church.'
Upon
this proof he asked the court to instruct the jury that
if they found from the evidence that he 'was married as
*162 charged--if he was married-- in pursuance of and
in conformity with what he believed at the time to be a
religious duty, that the verdict must be 'not guilty." This
request was refused, and the court did charge 'that there
must have been a criminal intent, but that if the defendant,
under the influence of a religious belief that it was right,--under
an inspiration, if you please, that it was right,-- deliberately
married a second time, having a first wife living, the want
of consciousness of evil intent--the want of understanding
on his part that he was committing a crime--did not excuse
him; but the law inexorably in such case implies the criminal
intent.'
Upon
this charge and refusal to charge the question is raised,
whether religious belief can be accepted as a justification
of an overt act made criminal by the law of the land. The
inquiry is not as to the power of Congress to prescribe
criminal laws for the Territories, but as to the guilt of
one who knowingly violates a law which has been properly
enacted, if he entertains a religious belief that the law
is wrong.
Congress
cannot pass a law for the government of the Territories
which shall prohibit the free exercise of religion. The
first amendment to the Constitution expressly forbids such
legislation. Religious freedom is guaranteed everywhere
throughout the United States, so far as congressional interference
is concerned. The question to be determined is, whether
the law now under consideration comes within this prohibition.
The
word 'religion' is not defined in the Constitution. We must
go elsewhere, therefore, to ascertain its meaning, and nowhere
more appropriately, we think, than to the history of the
times in the midst of which the provision was adopted. The
precise point of the inquiry is, what is the religious freedom
which has been guaranteed.
Before
the adoption of the Constitution, attempts were made in
some of the colonies and States to legislate not only in
respect to the establishment of religion, but in respect
to its doctrines and precepts as well. The people were taxed,
against their will, for the support of religion, and sometimes
for the support of particular sects to whose tenets they
could not and did not subscribe. Punishments were prescribed
for a failure to attend upon public worship, and sometimes
for entertaining *163 heretical opinions. The controversy
upon this general subject was animated in many of the States,
but seemed at last to culminate in Virginia. In 1784, the
House of Delegates of that State having under consideration
'a bill establishing provision for teachers of the Christian
religion,' postponed it until the next session, and directed
that the bill should be published and distributed, and that
the people be requested 'to signify their opinion respecting
the adoption of such a bill at the next session of assembly.'
This
brought out a determined opposition. Amongst others, Mr.
Madison prepared a 'Memorial and Remonstrance,' which was
widely circulated and signed, and in which he demonstrated
'that religion, or the duty we owe the Creator,' was not
within the cognizance of civil government. Semple's Virginia
Baptists, Appendix. At the next session the proposed bill
was not only defeated, but another, 'for establishing religious
freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff.
Works, 45; 2 Howison, Hist. of Va. 298. In the preamble
of this act (12 Hening's Stat. 84) religious freedom is
defined; and after a recital 'that to suffer the civil magistrate
to intrude his powers into the field of opinion, and to
restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy
which at once destroys all religious liberty,' it is declared
'that it is time enough for the rightful purposes of civil
government for its officers to interfere when principles
break out into overt acts against peace and good order.'
In these two sentences is found the true distinction between
what properly belongs to the church and what to the State.
In
a little more than a year after the passage of this statute
the convention met which prepared the Constitution of the
United States.' Of this convention Mr. Jefferson was not
a member, he being then absent as minister to France. As
soon as he saw the draft of the Constitution proposed for
adoption, he, in a letter to a friend, expressed his disappointment
at the absence of an express declaration insuring the freedom
of religion (2 Jeff. Works, 355), but was willing to accept
it as it was, trusting that the good sense and honest intentions
of the people would bring about the necessary alterations.
*164 1 Jeff. Works, 79. Five of the States, while adopting
the Constitution, proposed amendments. Three--New Hampshire,
New York, and Virginia--included in one form or another
a declaration of religious freedom in the changes they desired
to have made, as did also North Carolina, where the convention
at first declined to ratify the Constitution until the proposed
amendments were acted upon. Accordingly, at the first session
of the first Congress the amendment now under consideration
was proposed with others by Mr. Madison. It met the views
of the advocates of religious freedom, and was adopted.
Mr. Jefferson afterwards, in reply to an address to him
by a committee of the Danbury Baptist Association (8 id.
113), took occasion to say: 'Believing with you that religion
is a matter which lies solely between man and his God; that
he owes account to none other for his faith or his worship;
that the legislative powers of the government reach actions
only, and not opinions,--I contemplate with sovereign reverence
that act of the whole American people which declared that
their legislature should 'make no law respecting an establishment
of religion or prohibiting the free exercise thereof,' thus
building a wall of separation between church and State.
Adhering to this expression of the supreme will of the nation
in behalf of the rights of conscience, I shall see with
sincere satisfaction the progress of those sentiments which
tend to restore man to all his natural rights, convinced
he has no natural right in opposition to his social duties.'
Coming as this does from an acknowledged leader of the advocates
of the measure, it may be accepted almost as an authoritative
declaration of the scope and effect of the amendment thus
secured. Congress was deprived of all legislative power
over mere opinion, but was left free to reach actions which
were in violation of social duties or subversive of good
order.
Polygamy
has always been odious among the northern and western nations
of Europe, and, until the establishment of the Mormon Church,
was almost exclusively a feature of the life of Asiatic
and of African people. At common law, the second marriage
was always void (2 Kent, Com. 79), and from the earliest
history of England polygamy has been treated as an offence
against society. After the establishment of the ecclesiastical
*165 courts, and until the time of James I., it was
punished through the instrumentality of those tribunals,
not merely because ecclesiastical rights had been violated,
but because upon the separation of the ecclesiastical courts
from the civil the ecclesiastical were supposed to be the
most appropriate for the trial of matrimonial causes and
offences against the rights of marriage, just as they were
for testamentary causes and the settlement of the estates
of deceased persons.
By
the statute of 1 James I. (c. 11), the offence, if committed
in England or Wales, was made punishable in the civil courts,
and the penalty was death. As this statute was limited in
its operation to England and Wales, it was at a very early
period re-enacted, generally with some modifications, in
all the colonies. In connection with the case we are now
considering, it is a significant fact that on the 8th of
December, 1788, after the passage of the act establishing
religious freedom, and after the convention of Virginia
had recommended as an amendment to the Constitution of the
United States the declaration in a bill of rights that 'all
men have an equal, natural, and unalienable right to the
free exercise of religion, according to the dictates of
conscience,' the legislature of that State substantially
enacted the statute of James I., death penalty included,
because, as recited in the preamble, 'it hath been doubted
whether bigamy or poligamy be punishable by the laws of
this Commonwealth.' 12 Hening's Stat. 691. From that day
to this we think it may safely be said there never has been
a time in any State of the Union when polygamy has not been
an offence against society, cognizable by the civil courts
and punishable with more or less severity. In the face of
all this evidence, it is impossible to believe that the
constitutional guaranty of religious freedom was intended
to prohibit legislation in respect to this most important
feature of social life. Marriage, while from its very nature
a sacred obligation, is nevertheless, in most civilized
nations, a civil contract, and usually regulated by law.
Upon it society may be said to be built, and out of its
fruits spring social relations and social obligations and
duties, with which government is necessarily required to
deal. In fact, according as monogamous or polygamous marriages
are allowed, do we find the principles on which the government
of *166 the people, to a greater or less extent,
rests. Professor, Lieber says, polygamy leads to the patriarchal
principle, and which, when applied to large communities,
fetters the people in stationary despotism, while that principle
cannot long exist in connection with monogamy. Chancellor
Kent observes that this remark is equally striking and profound.
2 Kent, Com. 81, note (e). An exceptional colony
of polygamists under an exceptional leadership may sometimes
exist for a time without appearing to disturb the social
condition of the people who surround it; but there cannot
be a doubt that, unless restricted by some form of constitution,
it is within the legitimate scope of the power of every
civil government to determine whether polygamy or monogamy
shall be the law of social life under its dominion.
In
our opinion, the statute immediately under consideration
is within the legislative power of Congress. It is constitutional
and valid as prescribing a rule of action for all those
residing in the Territories, and in places over which the
United States have exclusive control. This being so, the
only question which remains is, whether those who make polygamy
a part of their religion are excepted from the operation
of the statute. If they are, then those who do not make
polygamy a part of their religious belief may be found guilty
and punished, while those who do, must be acquitted and
go free. This would be introducing a new element into criminal
law. Laws are made for the government of actions, and while
they cannot interfere with mere religious belief and opinions,
they may with practices. Suppose one believed that human
sacrifices were a necessary part of religious worship, would
it be seriously contended that the civil government under
which he lived could not interfere to prevent a sacrifice?
Or if a wife religiously believed it was her duty to burn
herself upon the funeral pile of her dead husband, would
it be beyond the power of the civil government to prevent
her carrying her belief into practice?
So
here, as a law of the organization of society under the
exclusive dominion of the United States, it is provided
that plural marriages shall not be allowed. Can a man excuse
his practices to the contrary because of his religious belief?
*167 To permit this would be to make the professed doctrines
of religious belief superior to the law of the land, and
in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances.
A criminal
intent is generally an element of crime, but every man is
presumed to intend the necessary and legitimate consequences
of what he knowingly does. Here the accused knew he had
been once married, and that his first wife was living. He
also knew that his second marriage was forbidden by law.
When, therefore, he married the second time, he is presumed
to have intended to break the law. And the breaking of the
law is the crime. Every act necessary to constitute the
crime was knowingly done, and the crime was therefore knowingly
committed. Ignorance of a fact may sometimes be taken as
evidence of a want of criminal intent, but not ignorance
of the law. The only defence of the accused in this case
is his belief that the law ought not to have been enacted.
It matters not that his belief was a part of his professed
religion: it was still belief, and belief only.
In
Regina v. Wagstaff (10 Cox Crim. Cases, 531),
the parents of a sick child, who omitted to call in medical
attendance because of their religious belief that what they
did for its cure would be effective, were held not to be
guilty of manslaughter, while it was said the contrary would
have been the result if the child had actually been starved
to death by the parents, under the notion that it was their
religious duty to abstain from giving it food. But when
the offence consists of a positive act which is knowingly
done, it would be dangerous to hold that the offender might
escape punishment because he religiously believed the law
which he had broken ought never to have been made. No case,
we believe, can be found that has gone so far.
6.
As to that part of the charge which directed the attention
of the jury to the consequences of polygamy.
The
passage complained of is as follows: 'I think it not improper,
in the discharge of your duties in this case, that you should
consider what are to be the consequences to the innocent
victims of this delusion. As this contest goes on, they
multiply, *168 and there are pure-minded women and
there are innocent children,--innocent in a sense even beyond
the degree of the innocence of childhood itself. These are
to be the sufferers; and as jurors fail to do their duty,
and as these cases come up in the Territory of Utah, just
so do these victims multiply and spread themselves over
the land.'
While
every appeal by the court to the passions or the prejudices
of a jury should be promptly rebuked, and while it is the
imperative duty of a reviewing court to take care that wrong
is not done in this way, we see no just cause for complaint
in this case. Congress, in 1862 (12 Stat. 501), saw fit
to make bigamy a crime in the Territories. This was done
because of the evil consequences that were supposed to flow
from plural marriages. All the court did was to call the
attention of the jury to the peculiar character of the crime
for which the accused was on trial, and to remind them of
the duty they had to perform. There was no appeal to the
passions, no instigation of prejudice. Upon the showing
made by the accused himself, he was guilty of a violation
of the law under which he had been indicted: and the effort
of the court seems to have been not to withdraw the minds
of the jury from the issue to be tried, but to bring them
to it; not to make them partial, but to keep them impartial.
Upon
a careful consideration of the whole case, we are satisfied
that no error was committed by the court below.
Judgment
affirmed.
MR.
JUSTICE FIELD.
I concur
with the majority of the court on the several points decided
except one,--that which relates to the admission of the
testimony of Amelia Jane Schofield given on a former trial
upon a different indictment. I do not think that a sufficient
foundation was laid for its introduction. The authorities
cited by the Chief Justice to sustain its admissibility
seem to me to establish conclusively the exact reverse.
NOTE.--At
a subsequent day of the term a petition for a rehearing
having been filed, MR. CHIEF JUSTICE WAITE delivered the
opinion of the court.
Since
our judgment in this case was announced, a petition for
rehearing has been filed, in which our attention is called
to the fact that the sentence of the *169 court below
requires the imprisonment to be at hard labor, when the
act of Congress under which the indictment was found provides
for punishment by imprisonment only. This was not assigned
for error on the former hearing, and we might on that account
decline to consider it now; but as the irregularity is one
which appears on the face of the record, we vacate our former
judgment of affirmance, and reverse the judgment of the
court below for the purpose of correcting the only error
which appears in the record, to wit, in the form of the
sentence. The cause is remanded, with instructions to cause
the sentence of the District Court to be set aside and a
new one entered on the verdict in all respects like that
before imposed, except so far as it requires the imprisonment
to be at hard labor.
Footnote
[Footnote
1] Supra, p. 147.
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