not to disturb the lawful enjoyment of the owner of the surface. (3) That the excavation and removal of the minerals do not per se constitute any actionable invasion of the right of the owner of the surface, although subsequent events show that no adequate supports have been left to sustain the surface. (4) But that when, in consequence of not leaving or providing sufficient supports, a disturbance of the surface takes place, that disturbance is an invasion of the rights of the owner of the surface, and constitutes his cause of action. The foundation of the plaintiff's action then seems to be, that although the excavations of the minerals were acts by the defendants in the lawful enjoyment of their own property, yet when subsequently damage arose therefrom to the plaintiff in the enjoyment of his property, the defendants became responsible. For although the law encourages a man to the free use of his own property, yet if in doing a lawful thing in the enjoyment of that property he occasions damage to his neighbor which might have been avoided, he will be answerable for that damage whenever it occurs. Now as to the cause of action in 1868, there is no doubt that the mere excavation prior to or in 1868 was legitimate, and not of itself alone the foundation of any right of action; but when the subsidence of that year took place, and caused damage to the plaintiff's houses, then the defendants became liable to make good that loss, because though their acts were in the lawful use of their own property, yet the injurious consequences to the plaintiff might have been avoided. It is the disturbance then, when it arises, that is the cause of action, and not the prior legitimate act of the owners of the minerals in the lawful enjoyment of their own property. But although this be true, yet still the question which arose in Lamb v. Walker, ubi supra, and was not expressly decided by this house in Backhouse v. Bonomi, ubi supra, remains now to be considered and finally decided. There was a subsidence in 1868 causing special damage, giving the plaintiff a cause of action, and in respect of that damage he accepted compensation, which it seems agreed, is equivalent to a recovery of damages in an action if such action had then been instituted. In 1882 a fresh and distinct subsidence took place, causing special damage to the plaintiff. It was admitted before your lordships, "that after the partial subsidence in 1868 the strata remained practically quiescent until the working of the coal in the next adjoining land by the owner thereof in the year 1881, which working caused a creep and a further subsidence." And further, "that if the owner of the adjoining land had not worked his coal there would have been no further subsidence, and that if the coal under the respondent's land had not been taken out, or if the appellants had left sufficient support under the respondent's land, then the working of the adjoining owner would have done no harm." It will be observed on these admissions that the partial subsidence of 1868 had practically ceased, and that a fresh creep and subsidence took place in 1882, which would not have taken place if the defendants had left sufficient natural support under the plaintiffs' land, or we may add, had substituted adequate artificial support. There can be no doubt that though there has been no act of commission by the defendants since the completion of the excavation of 1868, yet if there had been no subsidence causing damage to the plaintiff prior to that of 1882, the present action could be maintained; but it is alleged that as the plaintiff had a complete cause of action in 1868, arising from the prior excavation and the subsidence of 1868, the statute of limitations then began to operate, and has barred the present action. It was further argued that in 1868 the plaintiff could and ought to have insisted on recovering once and for all

any damage that might arise prospectively from the excavation of 1868, according to the rule of law, which in order to prevent a multiplicity of actions, provides that damages resulting from one and the same cause of action must be assessed and recovered once and for all. That rule was applied by the majority of the court in Lamb v. Walker, and is not controverted. It is not inflexible, and admits of exceptions. We have to consider what was the cause of action in 1868, and whether the cause of action of 1882 is one and the same cause of action as that of 1868. If it is so, then the defendants are entitled to succeed on the defense of the statute of limitations. This appeal represents a class of cases peculiar and exceptional, to meet which, and to avoid grave inconvenience, if not injustice, our flexible common law has somewhat moulded itself. I deprecate discussing some of the arguments addressed to us, which seemed to me to be too fine, such as, for instance, whether the original act of the defendants was “innocent" or "perfectly innocent." The question here is not whether the original act of the defendants was "innocent," but whether they have occasioned damage to the plaintiff without any inevitable necessity. I am of opinion that Cockburn, C. J., in the case of Lamb v. Walker, and the Court of Appeal in the case before us, were respectively right in resting on Backhouse v. Bonomi, and deducing from it a principle which govers the question. Backhouse v. Bonomi is not satisfactorily reported. We gather from the report in your lordships' house with some difficulty what was actually decided. Mr. Manisty in his argument in that case at your lordships' bar puts it thus: "The act done was a perfectly innocent act at the time it was done; the argument on the other side is, that it must be treated as having been injurious, because it might afterward become so. If the action had been brought when the act was first done, the answer would have been that the defendant had a right to do the act, and that no damage had been occasioued." Lord Westbury says: "I think it is abundantly clear, both on principle and authority, that when the enjoyment of the house is interfered with by the actual occurrence of the mischief, the cause of action then arises, and the action may then be maintained." And Lord Cranworth adds: "It has been supposed that the right of the party whose land has been interfered with is a right to what is called the pillars or the support. In truth his right is to the ordinary enjoyment of his land, and until that ordinary enjoyment is interfered with he has nothing of which to complain. That seems the principle on which the case ought to be disposed of." It seems to me that Backhouse v. Bonomi did decide that the removal of the subjacent strata was an act (I will not say an innocent act) done in the legitimate exercise of ordinary ownership, which per se gave no right of action to the owner of the surface, and that the latter had no right of action until his enjoyment of the surface was actually disturbed. The disturbance then constituted his right of action. There was a complete cause of action in 1868, in respect of which compensation was given, but there was a liability to further disturbance. The defendants permitted this state of things to continue without taking any steps to prevent the occurrence of any future injury. A fresh subsidence took place, causing a new and further disturbance of the plaintiff's enjoyment, which gave him a new and distinct cause of action. If this view is correct, then it follows that the cause of action now insisted on by the plaintiff is not the same cause of action as that of 1868, but is in point of law, as it is physically, a new and independent cause of action arising in 1882, to which the defense of the statute of limitations is not applicable. The necessary conclu

sion is, that Lamb v. Walker was not correctly decided, and that the able reasoning of Cockburn, C. J., in that case ought to have prevailed.

openly and notoriously lived with the two women named as his wives, in Apache county, and claimed them as such. In this connection it is proper to state

CRIMINAL LAW-POLYGAMY-EVIDENCE-EDMUNDS LAW.

SUPREME COURT OF ARIZONA, JUNE 8, 1886.

UNITED STATES V. TENNEY.

It is competent to prove a polygamous marriage by admissions by the defendant of the fact, and by evidence that defendant openly and notoriously lived with the women alleged, claiming them as his wives.

Proof that defendant, with the women alleged, lived together in another Territory, he claiming them as his wives, is competent as tending to show the relations of the parties, if sustained by proof of marriage or cohabitation in this Territory.

By the laws of Arizona a marriage may be established by contract between the parties, without ceremony, and proof of such a marriage will sustain the charge.

A valid marriage existing, a valid marriage with another wife cannot be contracted; but a polygamous marriage may be, and such are the marriages that the Edmunds law aims to suppress. Knowledge by second wife of former existing marriage, though vitiating second marriage, does not make it any less a polygamous marriage. PPEAL from Yavapai. The facts are stated in the opinion.

A

J. A. Rush and J. C. Herndon, for defendants and appellants.

J. A. Zabriskie and A. L. Rouse, for plaintiff and appellee.

SHIELDS, C. J. In 1882 the Congress of the United States passed an act to amend section 5352 of the Revised Statutes of the United States in refereuce to polygamy, and for other purposes. This is the "Edmunds law," so called. Section 1 provides that "every 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 as therein stated. In section 3 of the act it is provided “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 in the manner provided.

The defendant, Ammon M. Tenney, was indicted under this law in the Third Judicial District Court of Arizona, at Prescott, in said Territory. On trial before a jury he was convicted of the crime of polygamy. He brings the case to this court, alleging errors in the rulings and instructions of the court below, and also defects in the indictment. We will consider the objections in the order we deem most convenient.

[Omitting a question of pleading.]

2. Objection is next made to the mode of proof of the marriage of defendant to Ann Eliza Tenney. This marriage was proven by the admissions of the defendant, often and apparently deliberately made, that he was married to such person, in the county of Apache, at the time named in the indictment; and also by testimony showing that the defendant thereafter

first wife, Anna, in Utah, some years previous to his claimed marriage with Ann Eliza, in Arizona. On the argument, we are urged to say that the proof of marriage just referred to was not sufficient proof thereof, and that therefore there was no legal marriage shown to have taken place with Ann Eliza; from which, it was argued, it would follow that the defendant was improperly convicted of polygamy. We are of the opinion that the proof given was competent and admissible evidence of a marriage to Ann Eliza Tenney, as charged. Its weight of course was for the jury. The jury regarded it as satisfactory proof of the marriage, and we have no doubt it was sufficient and proper evidence upon which they could find that fact.

The case of Miles v. U. S., 103 U. S. 304, disposes of the questions raised here adversely to the defendant. In that case, which was a prosecution for bigamy, the trial judge charged the jury that the declarations of the accused that he was married were evidence that the jury might consider as tending to prove an actual marriage; and further that such marriage, the same as any other fact, might be proven by the admissions of the defendant, or by circumstantial evidence, and that it was not necessary to prove it by witnesses who were present at the ceremony. In commenting on this charge the Supreme Court of the United States in its opinion says: "We are of opinion that the District Court committed no error in admitting such declarations, or in its charge to the jury concerning them." This is directly in point here, and decisive of the questions raised; nor does proof of a second or subsequent marriage, as intimated by counsel, differ from proof of a first one. The same kind of evidence is admissible in each case. 3 Greenl. Ev., § 205.

If in addition to these authorities, reasons were necessary to be stated in support of our decisions on this branch of the case, such are not wanting, and springing too from the very nature of the question discussed. Some of these reasons have been stated by the courts. The Supreme Court of Utah, considering a prosecution under the Edmunds law, says: "It is now a part of the history of this Territory that in cases of this character nearly all of the witnesses upon whom the government has to depend to make out its case are unwilling witnesses. They are generally members of the different households of the defendant, under his influence, and also subject to a powerful church pressure to compel them to shield the accused." U. S. v. Snow, 9 Pac. Rep. 686. Such difficulties are not confined to Utah alone. Similar embarrassments are met everywhere that this law is undertaken to be euforced. Again, in this Territory, no ceremony of marriage is required. If a man and woman presently agree to take each other as husband and wife, and from that time live together prefessedly in that relation, such is a valid marriage here, even though there should be a total absence of all ceremony. These reasons, and the law as laid down by the highest tribunal in the country, induce us to reject the argument urged upon us that we should require in this class of cases the highest evidence of marriage, and to hold, as we do, that marriage may be proven by the admissions of the accused, where they appear to be freely and deliberately made, as in this case, or may be proved by circumstances satisfying a jury of such fact. In this case the marriage of the defendant with Ann Eliza Tenney was proven both by the admissions of the defendant, and by other facts and circumstances independent of such admissions. We have already said such proof was competent and sufficient.

3. It is next assigned for error that the court ad

mitted proof of certain facts occurring in Utah sev eral years prior to the finding of the indictment. According to such testimony the defendant stated at such time, and in Utah, that he was then living with the two women named as his wives; and some proof, aside from his statement, was put in, tending to show he did cohabit with both the women in that territory. This subject however was first opened up and gone into by the defendant himself, presumably for the purpose of disputing the theory of the prosecution that he was married to Ann Eliza in Arizona. Such being the fact, he has no ground of complaint in this regard. The subject being thus open, the prosecution had an undoubted right to put inquiries and ascertain facts, with reference thereto. But aside from this view, and not desiring to put our opinion entirely on that ground, the testimony was clearly competent and admissible under the third count of the indictment. If material and competent under either count at the time it was given, it was right to receive it, and it could not properly have been excluded. There was no error here.

care.

We next cousider the errors alleged to have been committed by the district judge in his charge. These are the principal grounds relied upon for a reversal, and we have therefore considered them with great There are isolated sentences in the charge that were selected and pressed upon our attention at the hearing, and as to the correctness of which, as so presented, we then had some doubts. A more careful examination of the entire charge however has convinced us that it is correct in law, and that taken as a whole, and so read and considered, there is nothing in it of which the defendant can complain as presenting the case unfairly to the jury. The real issues upon which the jury were to pass were clearly stated, and the rules that must govern in the consideration of the case, so as to avoid a decision from mistake, passion or prejudice, were well laid down.

Two objections however are made to the instruction. It is said, in the first place, that the district judge improperly followed a rule of evidence as to proof of marriage found in the statutes of Arizona; and next, that the charge left the jury at liberty to find the marriage of the defendant to Ann Eliza Tenney in Arizona from facts indicating his marriage to her years before in Utah. We will consider these objections separately.

The statutes of Arizona referred to provide that in a prosecution for bigamy it shall not be necessary to prove either marriage by the register or certificate thereof, or other record evidence, but the same may be proved by such evidence as is admissible to prove a marriage in other cases. In his charge the district judge referred to this statute, and said that in this case no higher or further proof of the marriage of the defendant to Ann Eliza Tenney, in the Territory of Arizona, was required than that demanded by this statute. It is contended that this construction was erroneous for the reason that the statutes of Arizona had no application to this case, it being a prosecution for a violation of the law of the United States, and not for a violation of any law of the Territory of Arizona. It is true that this is a prosecution for a violation of a statute of the United States, but in such prosecutions it is not an unusual thing to refer to the State or Territorial statutes in matters of practice and evidence. Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 id. 652.

But the rule of evidence prescribed by the Arizona statute does not differ from the rule fixed by the Supreme Court of the United States in the Miles case as proper and sufficient evidence of marriage. The marriage laws of Arizona would govern as the proof of marriage. If the principle laid down by the district

judge was correct-and we have already seen that it was-it is of no importance where he obtained the words with which he announced that principlewhether from the statutes of Arizona, the opinion of the Supreme Court of the United States, or elsewhere. The instruction was correct in principle, and that is what we are concerned most about.

5. In the portion of the charge next claimed to be erroneous the court charged the jury in substance that even though the defendant had two wives in the Territory of Utah, in violation of law, the fact that he had continued the same offense for many years, it being a continuous offense, would be no defense for him to make against this prosecution. It is urged that this instruction authorized the jury to convict the defendant of the crime of polygamy upon evidence satisfying them of the fact of defendant's marriage to a second wife in the Territory of Utah, and also that the expression, "it being a continuous offense," was a direction for the jury to find the defendant guilty upon the theory that if he married in Utah, and brought his polygamous wife with him into the Territory of Arizona, he would thus renew his marriage contract in this Territory, so as to make him liable to a prosecution for polygamy, the same as though the marriage had taken place within this Territory. This is the argument made. While the instruction may be somewhat ambiguous, we think the criticism made upon it unfair, and a forced one. The court in this instruction had reference to the question of unlawful cohabitation alone, and to the proof which was in the case showing the defendant guilty of that offense in Utah.

To the proof against the defendant under the third count, tending to prove him guilty of that particular crime, it would be no defense for him to say he had been guilty of the similar crime in Utah. The court did not intend to say, and did not say, that if the defendant was actually married to his second wife in Utah, it would not be a defense to urge that fact in this prosecution to the charge of polygamy. That this is so is made clear from the balance of the charge, portious of which we quote. He says: "In this case the question of marriage is directly involved, and that perhaps is the most proper starting point for your con sideration." Then follows a very full and accurate definition of marriage, and the proof necessary to be adduced in support thereof. After that the court proceeds: The next proposition involved is when must the defendant, and where must the defendant, have committed this offense, in order to make him liable under the indictment that is here brought against him? He must have committed the offense within the Third Judicial district, consisting of the couuties of Mohave, Yavapai and Apache, of the Territory of Arizona, since the passage of this law that has been read in your hearing." And again: "No matter what the defendant and his wives' relation may have been in Utah, in New Mexico, or anywhere else, if within the last two years, in the Territory of Arizona, they renewed their agreemeut, and within the time, and within the district named, made this contract between themselves to live together as man and wife, and he introduced and recognized them as such, I charge you that he is guilty, as charged in the first count of the indictment, of the crime of polygany. These facts, gentlemen, must be proven to you beyond a reasonable doubt. It is not for the court to say how they will be proven, but as I said before, it must be from the evidence in the case."

This instruction repeats in other language the one just quoted, and to which objection was especially made, on the ground alleged that it permitted the jury to convict of polygamy on evidence of a marriage in Utah. While the instruction might have been plainer,

there is no sort of doubt as to what was meant; and that meaning, clear from the charge as a whole, is that even though he did have sexual intercourse with his second wife in Utah before his marriage to her under a promise or agreement of marriage, and this promise or agreement resulted in a marriage in Arizona, under which he lives with her, he would be guilty. Whether they "renewed" their agreement to become man and wife is of course of no importance. Did they actually marry here in Arizona? That was the question, and that question was fully and fairly submitted. It will not do to take a single expression like this one-“renewed their agreement"-and consider it alone and by itself. The whole charge must be taken together. Looking at it in this way, we repeat the charge was correct, as the quotations we make show, and the expressions referred to above could not have misled the jury. But the judge, even in this, states the meaning of the expressions, and it is that the defendant and his second wife must have, "in the district named, made this contract to live together as man and wife," and defendant must have treated her as such.

The court at further length, at the request of counsel for the defendant, instructed the jury as follows: 'Even though the defendant married a second wife while his first wife was living, and without having obtained a divorce from his said first wife, yet the jury cannot find the defendant guilty of polygamy, as charged in the first count of the indictment, unless you further find that said second marrriage was contracted within the said Third Judicial District of the Territory of Arizona." In giving this instruction, the court said: "I charge you, and I have charged you, that the offense must be committed in this judicial district, and within the time spoken of since the passage of this law."

on the other facts in the case that bear upon the question of reputation. I charge you that in a case of this kind, that if the only evidence of the existence of a marriage relation between the parties was that of reputation, it would not be of itself sufficient, but it is competent evidence to consider in connection with the other facts in the case, to enable you to arrive at the verdict."

These rather extended quotations from the charge of the district judge to the jury are made because of the able and earnest argument of counsel in behalf of the defense, that the instructions left the jury at liberty to convict the defendant of the crime of polygamy upon proof of a claimed marriage in the Territory of Utah, and upon proof of unlawful cohabitation alone, and without proof of marriage here. These quotations show the argument has no basis in fact to rest upon. From the whole charge, taken together, we are satisfied that the jury could not have misunderstood the issues that were submitted to them, and that before they could possibly convict the defendant of the crime of polygamy under the first count of the indictment, they must be satisfied that the marriage with Ann Eliza was entered into within the Third Judicial District of the Territory of Arizona. Indeed there was no proof in the case from which it could be seriously urged that the defendant was married to Ann Eliza in Utah. There seems to have been no statement made by him of sufficient definiteness to show such marriage. In this regard the case is different from his statements as to his marriage in Arizona. These were distinctly and deliberately made, and in connection with the proof of cohabitation, were sufficient evidence of marriage in Arizona.

6. Noticing the further objection made to the instruction that it too harshly criticised the offense of

A further request on the part of the defendant was given, as follows: "To find the defendant guilty under any of the counts in the indictments, the jury must find from the evidence that the offense charged was committed between the 22d day of March, 1882, and the finding and presentation of this indictment."

Again, at the request of defendant's counsel, the judge instructed the jury as follows: "The jury are instructed that marriage, within the purview of law upon which the two first counts of the indictment were founded, is defined to be a contract between a man and woman, by which they agree, each with the other, that they will assume the marital relations and live together as husband and wife."

Again, the court, on the further request of counsel for the defendant, instructed the jury as follows: "The jury are instructed that evidence tending to show cohabitation prior to March 22, 1882, does not raise any presumption from which either marriage or cohabitation can be inferred in this case."

The court, in giving this instruction, followed it up by a statement, as follows: "I stated at the time that evidence was offered, and drawn out by the defense, that it alone, even if you believed and are satisfied that they did cohabit and live together, would not of itself be sufficient to warrant a verdict of guilty. It was admitted, and only admitted, to be considered with the other facts and circumstances of the case bearing upon the relations existing between these parties, and to enable the jury to determine and decide

as follows: "I think it is 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 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 come up in the Territory of Utah, just so do these victims multiply, and spread themselves over the land."

Before leaving this branch of the case, and in connection with the objections considered, we call attention to one or two facts of importance. We are not asked to reverse this judgment upon the ground that there was not proof sufficient to go to the jury, and upon which they might fairly and honestly have found the defendant guilty of polygamy because of having married the said Ann Eliza in the Territory of Arizona, and at such time as to render him liable to a prosecution under the provisions of the Edmunds law. No argument is addressed to us on that point, nor is any such claim made; neither could such a position be contended for in view of the testimony in the case. We are satisfied therefore that the jury must have understood that the must find that there was a marriage between defendant and Ann Eliza, and that such marriage took place at the time named in the indictment, and within the Territory of Arizona. Nor is there any chance to say that the case was not fairly submitted to the jury by the court.

At the request of counsel for the defendant the court instructed the jury "that this is a criminal prosecution, and the defendant is presumed to be innocent,

and it devolves upon the prosecution to prove his guilt beyond a reasonable doubt; and the fact that the defendant has produced no witnesses to testify in his behalf should not be considered by the jury in deciding the case, but such decision must be based entirely upon the evidence before them."

Again, in response to a further request from counsel for the defendant, the court said to the jury: "The law presumes the defendant innocent of the crime of which he is charged until he is proven guilty beyond a reasonable doubt by competent evidence, and if the evidence in this cause leaves upon the minds of the jury any reasonable doubt of the defendant's guilt, the law makes it your duty to acquit him."

There are other portions of the charge which repeat at very great length, and over and over again, the caution that the jury must not convict upon any other than such testimony as would satisfy them of the guilt of the defendant beyond a reasonable doubt, and what was meant by this expression was also explained to the jury. In conclusion the court explained the charge that was made in the various counts, so that the jury must have understood perfectly the offense in each connt, and what proof would be necessary to sustain it, and what facts must be found in order to convict.

7. It remains to notice such other objections as were urged against the charge, mainly as to the effect of the principles announced therein. It is said in this regard that the defendant could not possibly have married Ann Eliza in Arizona in 1883, as he had married her long before in Utah. The error of this reasoning is that the facts do not warrant any such conclusion. We concede that if the defendant was married to Ann Eliza in Utah at the time it was claimed he had sexual relations with her there, and that such marital relation continued uninterruptedly up to the time of his indictment, he could not have been convicted in this case of the crime of polygamy. Under the statute of limitations this would be so, if for no other reason; but there is no proof of any such marriage, not even from the defendant himself, who did not see fit to go upon the stand and give testimony as to such marriage or any other facts. Besides the verdict of the jury is against this theory. There is some proof undoubtedly that defendant had sexual relations with said Ann Eliza in Utah, but in the absence of proof of even a polygamous marriage between them, and in the face of the fact established, and indeed admitted, that he was already married to one wife, and living with her, we must assume that his relations with Ann Eliza in Utah were those of an improper and meretricious sexual intimacy rather than marriage. It is probable that these relatious were under a promise of marriage some time in the future. That this intimacy subsequently, and in March, 1883, resulted in a polygamous marriage in Arizona-and this is the effect of the admissions of the defendant, proven in the case, and other evidence-could not have the effect of making a marriage between them in Utah. Under such circumstances, his first wife still being alive, he would be liable to a prosecution for polygamy in this Territory. In such a prosecution, as was said by the district judge, he caunot be heard to say that he had improper relations with the same woman prior to such marriage, and elsewhere. The jury have found in this case, as we have heretofore said, that the marriage took place in Arizona, and not in Utah, and there was proof upon which they could so find; and they were distinctly told they must so find in order to convict under the first count. Is not the case on this branch perfectly clear, in the absence of improper testimony upon which such finding could rest?

8. It is further objected that the marriage could not have taken place here or elsewhere, between the de

fendant and Ann Eliza, because both these parties knew that the defendant's first wife was still living and cohabiting with him. Upon this point we agree with counsel that under no definition of marriage, as understood by Christiau people-a union of one man with one woman for life-can these polygamous unions be looked upon as marriage. But counsel lose sight of the fact, which caused the enactment of the law in question, that there are such arrangements and unions under which a man takes to himself two, three or more women, and lives with them under a claim of marriage, These arrangements or unions are what the Edmunds law aims to punish and suppress. This was the kind of marriage meant by the district judge in his instruction touching the relation contracted and entered into in Arizona between the defendant and Ann Eliza Tenney. Such too is our meaning when we speak of the marriage between these parties. It is not necessary, in order to make out the offense, that the second marriage should be a valid one. Every bigamous or polygamous marriage is void, and it is the entering into the void marriage while a valid one is in existence that the law punishes. Regina v. Brown, 1 Car. & K. 144. Neither has knowledge of the fact that a prior wife was living any thing to do with the question. That knowledge usually exists, and it is one of the unfortunate consequences of the practice of polygamy. But for that reason shall the law be turned aside? Clearly not. It is an additional reason, upon the contrary, why it should inexorably punish.

We have now considered all the questions urged against the conviction of the defendant in this case, and our conclusion is that the conviction was right, and must be affirmed.

It is ordered according1y.

Barnes, J., concurs.

PORTER, J., (dissenting). I dissent from the opinion of the majority of the court, as I think the defendant should only have been convicted under the second count of the indictment, charging a violation of the third section of the Edmunds act. The ground upon which I dissent is that the higher offense was shown to be barred by the statute of limitations. It was abundantly proven that the defendant made such acknowledgment in Arizona of the two women being his wives as to constitute a marriage here, just the same as though two ceremonies has been performed; but that same proof, and by the same witnesses, showed that the same relations existed betwen the parties in Utah and in New Mexico at a time anterior to the open acknowledgments in this Territory, and a sufficient time to make the offense barred by the statute of limitations. My opinion is that from the time defendant first took on these marriage relations, and held both these women out as his wives, the statute began to run. Suppose two ceremonies had been per formed, either In Utah or in Arizona, could the defendant have been indicted after the statutory time had elapsed, though every day he declared them to the world to be his wives? Is this a marriage every day, and can it be a continuing offense? Emphatically, I say "No." In view of this condition of things, the Edmunds act provided that cohabitation with more that one woman without marriages should be punishable as a misdemeanor. The opiniou of the majority of the court states that the proof only indicated a meretricious connection in Utah and New Mexico. I submit that the witnesses showed the same admissions, and the same general reputation of marriage and cohabiting, in each of the Territories as in Arizona, and therefore I think it was as much a marriage there as here. Prosecutions aud convictions for unlawful cohabitation can be continuously made.