| 7
S.Ct. 556 30 L.Ed. 658 (Cite
as: 120 U.S. 274, 7 S.Ct. 556) Supreme
Court of the United States Ex
parte SNOW [FN1] FN1
See United States v. Snow, 9 Pac. Rep. 501; Same v. Same, Id. 686; Same v. Same,
Id. 697; Snow v. United States, 6 Sup. Ct. Rep. 1059.
February 7, 1887 Appeal
from the Third Judicial District Court, Salt Lake County, Territory of Utah. West
Headnotes Habeas
Corpus k503.1 197k503.1 (Formerly
197k27) Where
the want of jurisdiction to inflict a punishment imposed in pursuance of a conviction
appears on the face of the judgment, the objection may be taken on a writ of habeas
corpus. Habeas
Corpus k814 197k814 (Formerly
197k113(3)) An
order of a district court of the United States refusing to issue a writ of habeas
corpus is, so far as an appeal is concerned, equivalent to a refusal to discharge
the petitioner on a hearing on the return to the writ; and, under section 1909
of the Revised Statutes, an appeal to the supreme court lies from such order. Bigamy
k1 55k1 The
offense of cohabiting with more than one woman, as defined in Act Cong. March
22, 1882, c. 47, § 3, 18 U.S.C.A. § 514, is committed when there is a living or
dwelling together as husband and wife, and is inherently a continuous offense,
having duration, and not an offense consisting of an isolated act. Bigamy
k17 55k17 Where
three indictments are found against an accused for unlawful cohabitation with
more than one woman, under Act Cong. March 22, 1882, c. 47, § 3, 18 U.S.C.A. §
514, alike in all respects except that each covers a different period of time,
and the defendant is found guilty on each indictment, the court has no jurisdiction
to inflict punishment in respect of more than one of the convictions, as the offense
is to be regarded as single and entire between the earliest and latest days laid
in any of the indictments. **556
*275 F. S. Richards and Geo. Ticknor Curtis, for appellant. Asst.
Atty. Gen. Maury, for respondent. BLATCHFORD,
J. Section
3 of the act of congress approved March 22, 1882, c. 47, (22 St. 31,) provides
as follows: 'Sec.
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, *276 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
the court.' The
grand jury of the United States for November term, 1885, in the district court
of the First judicial district in and for the territory of Utah, on the fifth
of December, 1885, presented and filed in that court, in open court, three several
indictments, in the name of the United States, against Lorenzo Snow, each of them
found December 2, 1885, designated as No. 741, No. 742, and No. 743. Each of them
was founded on the foregoing statute, and they were alike in all respects, except
that each covered a different period of time. No. 741 alleged that Snow, on the
first of January, 1883, 'at the county of Box Elder, in the said district, territory
aforesaid, and within the jurisdiction of **557 this court, and on divers
other days and times thereafter, and continuously between said first day of January,
A. D. 1883, and the thirty- first day of December, A. D. 1883, did then and there
unlawfully live and cohabit with more than one woman, to-wit, with Adeline Snow,
Sarah Snow, Harriet Snow, Eleanor Snow, Mary H. Snow, Phoebe W. Snow, and Minnie
Jensen Snow; and during all the period aforesaid, at the county aforesaid, he,
the said Lorenzo Snow, did unlawfully claim, live, and cohabit with all of said
women as his wives.' No. 742 alleged that Snow, on the first of January, 1885,
'and on divers other days and times thereafter, and continuously between said
first day of January, A. D. 1885, and the first day of December, A. D. 1885, did
then and there unlawfully live and cohabit with more than one woman, to-wit, with'
the seven persons above named, 'and during all the period aforesaid' 'did unlawfully
claim, live, and cohabit with all of said women as his wives.' No. 743 alleged
that Snow, on the first of January, 1884, 'and on divers other days and times
thereafter, and continuously between said first day of January, A. D. 1884, and
the thirty-first day of December, A. D. 1884, did then and there unlawfully live
and cohabit with more than one woman, to-wit, with' the seven persons above named,
'and during all the period aforesaid' 'did unlawfully *277 claim, live,
and cohabit with all of said women as his wives.' At
the time of filing each indictment it was properly indorsed 'a true bill, etc.,
and with the names of the witnesses.' The same 16 witnesses were examined before
the grand jury, 'on one oath and one examination, as to the alleged offense during
the entire time mentioned in all of said three indictments, and' they were found
'upon the testimony of witnesses given on an examination covering the whole time
specified in said three indictments.' On the eleventh of December, 1885, the defendant
was arraigned on each of the three indictments, and interposed a demurrer to each,
which being overruled, he pleaded not guilty to each. Indictment No. 742 was first
tried, covering the period from and including January 1, 1885, to December 1,
1885. On the thirty-first of December, 1885, a verdict of guilty was rendered,
and the court fixed the sixteenth of January, 1886, as the time for passing sentence. Indictment
No. 743 was next tried, covering the period from and including January 1, 1884,
to December 31, 1884. The defendant orally put in an additional plea in bar, setting
up his prior conviction on indictment No. 742, and that the offense charged in
all of the indictments was one continuous offense, and the same offense, and not
divisible. On an oral demurrer to this plea, the demurrer was sustained. On the
trial by the jury, a verdict of guilty was rendered on the fifth of January, 1886,
and the court fixed the sixteenth of January, 1886, as the time for passing sentence.
Indictment No. 741 was next tried, covering the period from and including January
1, 1883, to December 31, 1883. The defendant orally put in an additional plea
in bar, setting up his prior convictions on indictments Nos. 742 and 743, and
that the offense charged in all of the indictments was one continuous offense,
and the same offense, and not divisible. On an oral demurrer to this plea, the
demurrer was sustained. On the trial by the jury, a verdict of guilty was rendered
on the fifth of January, 1886, and the court fixed the sixteenth of January, 1886,
as the time for passing sentence. *278
The record of the court states that on the last-named day the following proceedings
took place, in open court: '[Title
of Court and Cause.] 'The
defendant, and his counsel, F. S. Richards and C. C. Richards, Esq'rs, (of counsel,)
came into court. The defendant was duly informed of the nature of the indictments
found against him on the fifth day of December, 1885, by the grand jury of this
court, for the crime of unlawful cohabitation, committed **558 as stated
in said indictments, and during the time, as follows, viz.: Indictment No. 741,
between the first day of January, A. D. 1883, and the thirty-first day of December,
A. D. 1883; indictment No. 742, between the first day of January, A. D. 1885,
and the first day of December, A. D. 1885; indictment No. 743, between the first
day of January, A. D. 1884, and the thirty-first day of December, A. D. 1884;
of his arraignment and plea of not guilty as charged in said three indictments,
on the sixteenth day of December, A. D. 1885; of his trial and the verdicts of
the juries; indictment No. 742, 'Guilty as charged in the indictment,' on December
31, 1885; indictment No. 743, 'Guilty as charged in the indictment,' on January
5, 1886; indictment No. 741, 'Guilty as charged in the indictment,' on January
5, 1886. The said defendant was then asked if he had any legal cause to show why
judgment should not be pronounced against him, to which he replied that he had
none; and no sufficient cause being shown or appearing to the court, thereupon
the court renders its judgment that, whereas said Lorenzo Snow having been duly
convicted in this court of the crime of unlawful cohabitation, it is ordered,
adjudged, and decreed that said Lorenzo Snow be imprisoned in the penitentiary
of the territory of Utah for a period of six months, and that he do forfeit and
pay to the United States a fine of three hundred dollars, and the costs of this
prosecution, and that he do stand committed into the custody of the U. S. marshal
for said territory until such fine and costs be paid in full. (As to indictment
No. 741.) *279 And it is further ordered, adjudged, and decreed that, at
the expiration of the sentence and judgment rendered on said indictment No. 741,
said Lorenzo Snow be imprisoned in the penitentiary of Utah territory for a period
of six months, and that he do forfeit and pay to the United States the sum of
three hundred dollars, and the costs of this prosecution, and that he do stand
committed into the custody of the U. S. marshal for said territory until such
fine and costs be paid in full. (As to indictment No. 742.) And it is further
ordered, adjudged, and decreed that, at the expiration of the sentence and judgment
as last above rendered on said indictment No. 742, said Lorenzo Snow be imprisoned
in the penitentiary of Utah territory for a period of six months, and that he
do forfeit and pay to the United States the sum of three hundred dollars, and
the costs of this prosecution, and that he do stand committed into the custody
of the U. S. marshal for said territory until such fine and costs be paid in full.
(As to indictment No. 743.) The said defendant, Lorenzo Snow, is remanded into
the custody of the United States marshal for Utah territory, to be by him delivered
into the custody of the warden or other proper officer in charge of said penitentiary;
and said warden or other proper officer of said penitentiary is hereby commanded
to receive of and from the said United States marshal, him, the said Lorenzo Snow,
convicted and sentenced as aforesaid, and him, the said Lorenzo Snow, keep and
imprison in said penitentiary for the periods as in this judgment ordered and
specified. 'ORLANDO
W. POWERS, Judge.' On
the twenty-second of October, 1886, the defendant filed in the district court
of the Third judicial district of the territory of Utah a petition setting forth
that he is a prisoner confined in the penitentiary of the territory of Utah, 'by
virtue of the warrant, judgment, and proceedings of record, including three indictments
against your petitioner, his arraignment thereon, and pleas thereto, respectively,
as well as demurrers to such pleas, decisions thereof, and verdicts of the jury,
*280 being the record of said matters in the district court of the First judicial
district of the territory of Utah,' copies of all which papers, 16 in number,
were annexed to the petition; that, under said judgment, and in execution thereof,
he had been imprisoned in said penitentiary for more than six months, to-wit,
continuously since the twelfth day of March, 1886, and had paid $300 in satisfaction
of the fine adjudged against him, and 'all **559 the costs awarded and
assessed against him on said prosecution;' that his imprisonment is illegal in
that 'the court had no jurisdiction to pass judgment' against him 'upon more than
one of the indictments or records referred to in its said judgment, for the reason
that the offense therein set out is the same as that contained and set out in
each of the other said indictments and records, and the maximum punishment which
the court had authority to impose was six months' imprisonment and a fine of three
hundred dollars;' and 'that by his said imprisonment your petitioner is being
punished twice for one and the same offense.' The prayer is for a writ of habeas
corpus, to the end that the petitioner may be discharged from custody. On
a hearing on the petition the following order was made by the court, on the twenty-third
of October, 1886: 'The petition of Lorenzo Snow for a writ of habeas corpus
having been presented to the court, with the exhibits attached as a part thereof,
and the court having fully considered the application and petition and the exhibits
attached, finds that the facts alleged and shown by the petition and exhibits
are insufficient to authorize the issuance of the writ; and the court being of
the opinion, from the allegations and facts stated in the petition and exhibits,
that, if the writ be granted and a hearing given, the petitioner could not be
discharged from custody, it is ordered and adjudged by the court that the said
application for a writ of habeas corpus be, and the same is hereby, refused;
to which ruling and refusal applicant, by his counsel, excepts.' From this order
and judgment the petitioner has appealed to this court. There
can be no doubt that the action of the district court, *281 as set forth
in its order and judgment refusing to issue the writ, was, so far as an appeal
is concerned, equivalent to a refusal to discharge the petitioner on a hearing
on the return to a writ; and that, under section 1909 of the Revised Statutes,
an appeal lies to this court from that order and judgment. It is contended for
the United States that, as the court which tried the indictments had jurisdiction
over the offenses charged in them, it had jurisdiction to determine the questions
raised by the demurrers to the oral pleas in bar in the cases secondly and thirdly
tried; that it tried those questions; that those questions are the same which
are raised in the present proceeding; that they cannot be reviewed on habeas
corpus by any court; and that they could only be re-examined here on a writ
of error, if one were authorized. For these propositions the case of Ex parte
Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542, is cited. But, for the reasons
hereafter stated, we are of opinion that the decision in that case does not apply
to the present one. The
offense of cohabiting with more than one woman, in the sense of the section of
the statute on which the indictments were founded, may be committed by a man by
living in the same house with two women whom he had theretofore acknowledged as
his wives, and eating at their respective tables, and holding them out to the
world by his language or conduct, or both, as his wives, though he may not occupy
the same bed or sleep in the same room with them, or either of them, or have sexual
intercourse with either of them. The offense of cohabitation, in the sense of
this statute, is committed if there is a living or dwelling together as husband
and wife. It is, inherently, a continuous offense, having duration; and not an
offense consisting of an isolated act. That it was intended in that sense in these
indictments is shown by the fact that in each the charge laid is that the defendant
did on the day named and 'thereafter and continuously,' for the time specified,
'live and cohabit with more than one woman, to-wit with' the seven women named,
and 'during all the period aforesaid' 'did unlawfully claim, live, and cohabit
with all of said women as his wives.' Thus, in each indictment, *282 the
offense is laid as a continuing one and a single one for all the time covered
by the indictment; and, taking the three indictments together, there is charged
a continuing offense for the entire time covered by all three of the indictments.
There was **560 but a single offense committed prior to the time the indictments
were found. This appears on the face of the judgment. It refers to the indictments
as found 'for the crime of unlawful cohabitation committed' 'during the time'
stated, divided into three periods, according to each indictment. For so much
of the offense as covered each of these periods the defendant is, according to
the judgment, to be imprisoned for six months and to pay a fine of $300. The division
of the two years and eleven months is wholly arbitrary. On the same principle
there might have been an indictment covering each of the 35 months, with imprisonment
for 17 1/2 years and fines amounting to $10,500, or even an indictment covering
every week, with imprisonment for 74 years and fines amounting to $44,400; and
so on, ad infinitum, for smaller periods of time. It is to prevent such
an application of penal laws that the rule has obtained that a continuing offense
of the character of the one in this case can be committed but once, for the purposes
of indictment or prosecution, prior to the time the prosecution is instituted.
Here each indictment charged unlawful cohabitation with the same seven women;
all the indictments were found at the same time, by the same grand jury, and on
the testimony of the same witnesses, covering a continuous period of 35 months;
and it was the mere will of the grand jury which divided the time among three
indictments, and stopped short of dividing it among 35 or 152, or even more. It
was quite in consonance with this action that the prosecuting officer tried the
indictments in the inverse order of the time to which each related,--that for
1885 first, that for 1884 next, and that for 1883 last. Hence the defendant could
not, on any trial, plead or show that he had before been tried on an indictment
in respect to a period of time antedating that laid in the indictment on trial.
Then, after the verdicts, there was *283 not a separate judgment in each
case; but only one judgment in form was rendered for all the cases. The judgment
says on its face that the proper officer of the penitentiary is to imprison the
defendant therein 'for the periods as in this judgment ordered and specified;'
that is, for three successive periods of six months each, the first period to
apply to the indictment thirdly tried; the second period to apply to the indictment
first tried, and to begin when the sentence and judgment on the indictment thirdly
tried should expire; and the third period to apply to the indictment secondly
tried, and to begin when the sentence and judgment on the indictment secondly
tried should expire. No case is cited where what has been done in the present
case has been held to be lawful. But the uniform current of authority is to the
contrary, both in England and in the United States. A
leading case on the subject in England is Crepps v. Durden, Cowp.
640. In that case the statute (29 Car. II. c. 7) provided 'that no tradesman
or other person shall do or exercise any worldly labor, business, or work of their
ordinary calling on the Lord's day, works of necessity and charity only excepted.'
A penalty of five shillings was affixed to each offense, and it was made cognizable
by a justice of the peace. Crepps, a baker, was convicted before Durden, a justice,
by four separate convictions, 'of selling small hot loaves of bread, the same
not being any work of charity, on the same day, being Sunday,' in violation of
that statute. Durden issued four warrants, one on each conviction, to officers,
who, under them, levied four penalties, of five shillings each, on the goods of
Crepps. The latter sued Durden and the others, in trespass, in the king's bench,
in 1777, and had a verdict before Lord MANFIELD for three sums of five shillings
each, subject to the opinion of the court. The first question raised was whether,
in the action of trespass, and before the convictions were quashed, their legality
could be objected to; and, next, whether the levy under the last three warrants
could be justified. It was contended for the plaintiff that the last three convictions
were in excess of the jurisdiction of the justice, *284 because the offense
created by the statute was the exercising of a calling on the Lord's day, and,
if the plaintiff had continued baking from morning till night, it would still
be but one offense; **561 that the four convictions were for one and the
same offense; and that an action would lie against the justice and the officers.
On the other side it was urged that, as the justice had general jurisdiction of
the offense in question, the convictions must be quashed or reversed on appeal
before they could be questioned. At a subsequent day the unanimous opinion of
the court was delivered by Lord MANSFIELD. He first considered the question whether
the legality of the convictions could be objected to before they were quashed.
As to this he said: 'Here are three convictions of a baker for exercising his
trade on one and the same day, he having been before convicted for exercising
his ordinary calling on that identical day. If the act of parliament gives authority
to levy but one penalty, there is an end of the question; for there is no penalty
at common law. On the construction of the act of parliament the offense is 'exercising
his ordinary trade upon the Lord's day,' and that without any fractions of a day,
hours, or minutes. It is but one entire offense, whether longer or shorter in
point of duration. So, whether it consists of one or of a number of particular
acts, the penalty incurred for this offense is five shillings. There is no idea
conveyed by the act itself that, if a tailor sews on the Lord's day, every stitch
he takes is a separate offense; or, if a shoemaker or carpenter work for different
customers at different times on the same Sunday, that those are so many separate
and distinct offenses. There can be but one entire offense on one and the same
day. And this is a much stronger case than that which has been alluded to, of
killing more hares than one on the same day. Killing a single hare is an offense;
but the killing ten more on the same day will not multiply the offense or the
penalty imposed by the statute for killing one. Here repeated offenses are not
the object which the legislature had in view in making the statute, but singly,
to punish a man for exercising his ordinary trade and calling on a Sunday. Upon
this construction, the justice had no jurisdiction whatever in respect of the
*285 three last convictions. How, then, can there be a doubt but that the
plaintiff might take this objection at the trial?' As to justifying the levy under
the last three warrants Lord MANSFIELD said: 'But what could the justification
have been in this case, if any had been attempted to be set up? It could only
have been this: That, because the plaintiff had been convicted of one offense
on that day, therefore the justice had convicted him in three other offenses for
the same act. By law that is no justification. It is illegal on the face of it;
and therefore, as was very rightly admitted by the counsel for the defendant in
the argument, if put upon the record by way of plea, would have been bad, and
on demurrer must have been so adjudged. Most clearly, then, it was open to the
plaintiff, upon the general issue, to take advantage of it at the trial. The question
does not turn upon niceties; upon a computation how many hours distant the several
bakings happened; or upon the fact of which conviction was prior in point of time;
or that for uncertainty in that respect they should all four be held bad. But
it goes upon the ground that the offense itself can be committed only once in
the same day.' In
the case at bar the statute provides that, if any male person shall thereafter
cohabit with more than one woman, he shall, on conviction, be punished thus and
so. The judgment in the case, taken in connection with the other proceedings in
the record and the statute, shows, within the principle of Crepps v.
Durden, that there was but one entire offense, whether longer or shorter in
point of duration, between the earliest day laid in any indictment and the latest
day laid in any. There can be but one offense between such earliest day and the
end of the continuous time embraced by all of the indictments. Not only had the
court which tried them no jurisdiction to inflict a punishment in respect of more
than one of the convictions, but, as the want of jurisdiction appears on the face
of the judgment, the objection may be taken on habeas corpus when the sentence
on more than one of the convictions is sought to be enforced. If such an objection
could be taken in Crepps **562 v. Durden, in a collateral
action for damages, it can be taken on a a habeas corpus to release the
party *286 from imprisonment under the illegal judgment. These considerations
distinguish the case from that of Ex parte Bigelow, ubi supra, and bring
it within the principle of such cases as Ex parte Milligan, 4 Wall. 2,
131; Ex parte Lange, 18 Wall. 163, 178; and Ex parte Wilson, 114
U. S. 417, 5 Sup. Ct. Rep. 935. A
distinction is laid down in adjudged cases and in text-writers between an offense
continuous in its character, like the one at bar, and a case where the statute
is aimed at an offense that can be committed uno ictu. The subject is discussed
in 1 Whart. Crim. Law, (9th Ed.) §§ 27, 931, and the cases on the subject are
cited. The
principle which governs the present case has been recognized and approved in many
cases in the United States. Washburn v. McInroy, (1810,) 7 Johns.
134; Mayor v. Ordrenan, (1815,) 12 Johns. 122; Tiffany v.
Driggs, (1816,) 13 Johns. 253; State v. Com'rs, (1818,) 2 Murph.
371; U. S. v. McCormick (1830,) 4 Cranch. C. C. 104; State
v. Nutt, (1856,) 28 Vt. 598; State v. Lindley, (1860,) 14
Ind. 430; Sturgis v. Spofford, (1871,) 45 N. Y. 446; Fisher
v. New York Cent. & H. R. R. Co., (1871,) 46 N. Y. 644; State
v. Egglesht, (1875,) 41 Iowa, 574; U. S. v. New York Guaranty
& Indemnity Co., (1875,) 8 Ben. 269; U. S. v. Erie Ry. Co.,
(1877,) 9 Ben. 67, 68. The
case of Com. v. Connors, 116 Mass. 35, gives no support to the view
that a grand jury may divide a single continuous offense running through a past
period of time into such parts as it may please, and call each part a separate
offense. On the contrary, in Com. v. Robinson, 126 Mass. 259, it
is said that the offense of keeping a tenement for the illegal sale of intoxicating
liquors on a day named, and on divers other days and times between that day and
a subsequent day, is but one offense, even though the tenement is kept during
every hour of the time between those two days, such offense being continuous in
its character. On
the whole case we are unanimously of opinion that the order and judgment of the
district court for the Third judicial district of Utah territory must be reversed,
and the case be remanded to that court, with a direction to grant *287
the writ of habeas corpus prayed for, and to take such proceedings thereon
as may be in conformity with law and not inconsistent with the opinion of this
court. Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works Reprinted from Westlaw with permission of Thomson/West. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/. |
