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not to disturb the lawful enjoyment of the owner of any damage that might arise prospectively from the the surface. (3) That the excavation and removal of excavation of 1868, according to the rule of law, which the minerals do not per se constitute any actionable in order to prevent a multiplicity of actions, provides invasion of tbe right of the owner of the surface, that damages resulting from one and the same cause although subsequent events show that no adequate of action must be assessed and recovered once and for supports have been left to sustain the

(4) all. That rule was applied by the majority of the But that when, in consequence of not leaving or pro- court in Lamb v. Walker, and is not controverted. It viding sufficient supports, a disturbance of the sur- is not inflexible, and admits of exceptions. We have face takes place, that disturbance is an invasion of the to consider what was the cause of action in 1868, and rights of the owner of the surface, and constitutes his whether the cause of action of 1882 is one and the cause of action. The foundation of the plaintiff's ac- same cause of action as that of 1868. If it is so, then tion then seems to be, that although the excavations the defendants are entitled to succeed on the defense of the minerals were acts by the defendants in the of the statute of limitations. This appeal represents a lawful enjoyment of their own property, yet when class of cases peculiar and exceptional, to meet which, subsequently damage arose therefrom to the plaintiff and to avoid grave inconvenience, if not injustice, our in the enjoyment of his property, the defendants be- flexible common law has somewhat moulded itself. I came responsible. For although the law encour- deprecate discussing some of the arguments addressed ages a man to the free use of his own property, yet if to us, which seeme to me to be too fine, such as, for in doing a lawful thing in the enjoyment of that prop- instance, whether the original act of the defendants erty he occasions damage to his neighbor which might was "innocent" or "perfectly innocent." The queshave been avoided, he will be answerable for that tion here is not whether the original act of the defenddamage whenever it occurs. Now as to the cause of ants was "innocent," but whether they have ocaction in 1868, there is no doubt that the mere exca- casioned damage to the plaintiff without any inevivation prior to or in 1868 was legitimate, and not of table necessity. I am of opinion that Cockburn, C. J., itself alone the foundation of any right of action; but in the case of Lamb v. Walker, and the Court of Apwhen the subsidence of that year took place, and peal in the case before us, were respectively right in caused damage to the plaintiff's houses, then the de- resting on Backhouse v. Bonomi, and deducing from fendants became liable to make good that loss, because it a principle which govers the question. Backhouse though their acts were in the lawful use of their own v. Bonomi is not satisfactorily reported. We gather property, yet the injurious consequences to the plain-fr the report in your lordships' house with tiff might have been avoided. It is the disturbance sone difficulty what was actually decided. Mr. Manthen, when it arises, that is the cause of action, and isty in his argument in that case at your lordships' not the prior legitimate act of the owners of the min- bar puts it thus: “The act done was a perfectly inerals in the lawful enjoyment of their own property. nocent act at the time it was done; the argument on But although this be true, yet still the question which the other side is, that it must be treated as haring arose in Lamb v. Walker, ubi supra, and was not ex- been injurious, because it might afterward become so. pressly decided by this house in Backhouse v. Bonomi, If the action had been brought when the act was first ubi supra, remains now to be considered and finally done, the answer would have been that the defendant decided. There was a subsidence in 1868 causing spec- had a right to do the act, and that no damage had been ial damage, giving the plaintiff a cause of action, and occasioued." Lord Westbury says: “I think it is in respect of that damage he accepted compensation, abundantly clear, both on principle and authority, which it seems agreed, is equivalent to a recovery of that when the enjoyment of the house is interfered damages iu an action if such action had then been in- with by the actual occurrence of tbe mischief, the stituted. In 1882 a fresh and distinct subsidence took cause of action then arises, and the action may then place, causing special damage to the plaintiff. It was be maintained.” And Lord Cranworth adds: “It admitted before your lordships, “that after the par- has been supposed that the right of the party whose tial subsidence in 1868 the strata remained practically land has been interfered with is a right to what is quiescent until the working of the coal in the next ad- called the pillars or the support. In truth his right is joining land by the owner thereof in the year 1881, to the ordinary enjoyment of his land, and until that which working caused a creep and a further subsid. ordinary enjoyment is interfered with he has nothing ence." And further, “that if the owner of the ad- of which to complain. That seems the principle on joining land had not worked his coal there would have which the case ought to be disposed of." It seems to been no further subsidence, and that if the coal under me that Backhouse v. Bonomi did decide that the rethe respondent's land had not been taken out, or if moval of the subjacent strata was an act (I will not the appellants had left sufficient support under the re- say an innocent act) done in the legitimate exercise of spondent's land, then the working of the adjoining ordinary ownership, which per se gave no right of acowner would have done no harm.” It will be ob- tion to the owner of the surface, and that the latter served on these admissions that the partial subsidence had no right of action until his enjoyment of the sur. of 1868 had practically ceased, and that a fresh creep face was actually disturbed. The disturbance then and subsidence took place in 1882, which would not constituted his right of action. There was a comhave taken place if the defendants had left sufficient plete cause of action in 1868, in respect of which comnatural support under the plaintiffs' laud, or we may pensatiou was given, but there was a liability to add, had substituted adequate artificial support. There further disturbance. The defendants permitted this can be no doubt that though there has been no act of state of things to continue without taking auy steps commission by the defendants since the completion of to prevent the occurrence of any future injury. A the excavation of 1868, yet if there had been no sub fresh subsidence took place, causing a new and further sidence causing damage to the plaintiff prior to that of disturbance of the plaintiff's enjoyment, which gave 1882, the present action could be maintained; but it is him a new and distinct cause of action. If this view alleged that as the plaintiff had a complete cause of is correct, then it follows that the cause of action now action in 1868, arising from the prior excavation and insisted on by the plaintiff is not the same cause of the subsidence of 1868, the statute of limitations then action as that of 1868, but is in point of law, as it is began to operate, and has barred the present action. It physically, a new and independent cause of action was further argued that in 1868 the plaintiff could and arising in 1882, to which the defense of the statute of ought to have insisted on recovering once and for all limitations is not applicable. The necessary conclu




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sion is, that Lamb v.Walker was not correctly decided, openly and notoriously lived with the two women and that the able reasoning of Cockburn, C. J., in named as his wives, in Apache county, and claimed that case ought to have prevailed.

them as such. In this connection it is proper to state Order appealed from affirmed, and appeal dismissed that it was admitted the defendant was married to his with costs.

first wife, Anna, in Utah, some years previous to his

claimed marriage with Ann Eliza, in Arizona. On the CRIMINAL LAW POLYGAMY EVIDENCE-ED. argument, we are urged to say that the proof of marMUNDS LAW.

riage 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 SUPREME COURT OF ARIZONA, JUNE 8, 1886.

was argued, it would follow that the defendant was im

properly convicted of polygamy. We are of the opinion UNITED STATES V. T'ENNEY.

that the proof given was competent and admissible It is competent to prove a polygamous marriage by admis-evidence of a marriage to Ann Eliza Tenney, as

sions by the defendant of the fact, and by evidence that charged. Its weight of course was for the jury. The defendant openly and notoriously lived with the women

jury regarded it as satisfactory proof of the marriage, alleged, claiming them as his wives.

and we have no doubt it was sufficient and proper Proof that defendant, with the women alleged, lived together evidence upon which they could find that fact. in another Territory, he claiming them as his wives, is

The case of Miles v. U.S., 103 U. S. 304, disposes of competent as tending to show the relations of the parties, the questions raised here adversely to the defendant. if sustained by proof of marriage or cohabitation in this In that case, which was a prosecution for bigamy, the Territory.

trial judge charged the jury that the declarations of By the laws of Arizona a marriage may be established by con

the accused that he was married were evidence that tract between the parties, without ceremony, and proof of the jury might consider as tending to prove an actual such a marriage will sustain the charge.

marriage; and further that such marriage, the same A valid marriage existing, a valid marriage with another wife

as any other fact, might be proven by the admissions cannot be contracted; but a polygamous marriage may

of the defendant, or by circumstantial evidence, and be, and such are the marriages that the Edmunds law

that it was not necessary to prove it by witnesses who aims to suppress. Knowledge by second wife of former were present at the ceremony. In commenting on existing marriage, though vitiating second marriage, does this charge the Supreme Court of the United States in not make it any less & polygamous marriage.

its opinion says: “ We are of opinion that the District APPEAL from Yavapai. The facts are stated in the court committed no error in admitting such declaraopinion.

This is directly in point here, and decisive of the quesJ. A. Rush and J. C. Herndon, for defendants and tions raised; nor does proof of a second or subsequent appellants.

marriage, as intimated by counsel, differ from proof of J. A. Zabriskie and A. L. Rouse, for plaintiff and a first one. The same kind of evidence is admissible appellee.

in each case. 3 Greenl. Ev., $ 205.

If in addition to these authorities, reasons were necSHIELDS, C. J. In 1882 the Congress of the United

essary to be stated in support of our decisions on this States passed an act to amend section 5352 of the Re- | branch of the case, such are not wanting, and vised Statutes of the United States in refereuce to springing too from the very nature of the quespolygamy, and for other purposes. This is the “Ed- tion discussed. Some of these reasons have been munds law,” so called. Section 1 provides that “every stated by the courts. The Supreme Court of Utah, person who has a husband or wife living, who in a

considering a prosecution under the Edmunds law, Territory or other place over which the United States says: “It is now a part of the history of this Territory have exclusive jurisdiction, hereafter marries another, that in cases of this character nearly all of the witwhether married or single; and any man who hereafter desses upou whom the government has to depend to simultaneously, or on the same day marries more than make out its oase are unwilling witnesses. They are one woman, in a Territory or other place over which generally members of the different households of the the United States have exclusive jurisdiction-is defendant, under his influence, and also subject to a guilty of polygamy," and shall be punished as therein powerful church pressure to compel them to shield stated. In section 3 of the act it is provided “that if the accused.U. S. v. Snow, 9 Pac. Rep. 686. Such any male person, in a Territory or other place over difficulties are not confined to Utah alone. Similar which the United States have exclusive jurisdic- embarrassments are met everywhere that this law is tion, bereafter cohabits with more than one woman, undertaken to be enforced. Again, in this Territory, he shall be deemed guilty of a misdemeanor," and on po ceremony of marriage is required. If a man and conviction thereof shall be punished in the manner woman presently agree to take each other as husband provided.

and wife, and from that time live together prefessedly The defevdaut, Ammon M. Tenney, was indicted in that relation, such is a valid marriage here, even under this law in the Third Judicial District Court of though there should be a total absence of all ceremony. Arizona, at Prescott, in said Territory. On trial be- These reasons, and the law as laid down by the highfore a jury he was convicted of the crime of polygamy. est tribunal in the country, induce us to reject the He brings the case to this court, alleging errors in the argument urged upon us that we should require in this rulings and instructions of the court below, and also class of cases the highest evidence of marriage, and to defects in the indictment. We will consider the ob- | bold, as we do, that marriage may be proven by the jections in the order we deem most convenient. admissions of the acoused, where they appear to be (Omitting a question of pleading.]

freely and deliberately made, as in this case, or may 2. Objection is next made to the mode of proof of be proved by circumstances satisfying a jury of such the marriage of defendant to Ann Eliza Tenney. This fact. In this case the marriage of the defendant with marriage was proven by the admissions of the defend- | Ann Eliza Tenney was proven both by the admissions ant, often and apparently deliberately made, that he of the defendant, and by other facts and circumstances was married to such person, in the county of Apache, independent of such admissions. We have already at the time named in the indictment; and also by said such proof was competent and sufficient. testimony showing that the defendant thereafter 3. It is next assigned for error that the court ad

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which the defendant can complain as presenting the


mitted proof of certain facts occurring in Utah sev judge was correct-and we have already seen that it
eral years prior to the finding of the indictment. Ac- was-it is of no importance where he obtained the
cording to such testimony the defendant stated at words with which he announced that principle-
such time, and in Utah, that he was then living with whether from the statutes of Arizona, the opinion of
the two women named as his wives; and some proof, the Supreme Court of the United States, or elsewhere.
aside from his statement, was put in, tending to show the instruction was correct in principle, and that is
he did cohabit with both the women in that territory. what we are concerned most about.
This subject however was first opened up and gone into 5. In the portion of the charge next claimed to be
by the defendant himself, presumably for the purpose erroneous the court charged the jury in substance that
of disputing the theory of the prosecution that he was even though the defendant had two wives in the Ter-
married to Ann Eliza in Arizona. Such being the ritory of Utah, in violation of law, the fact that be
fact, he has no ground of complaint in this regard. had continued the same offense for many years, it
The subject being thus open, the prosecution had an being a continuous offense, would be no defense for
undoubted right to put inquiries and ascertain facts, him to make against this prosecution. It is urged
with reference thereto. But aside from this view, and that this instruction authorized the jury to convict the
not desiring to put our opinion entirely on that defendant of the crime of polygamy upon evidence
ground, the testimony was clearly competent and ad- satisfying them of the fact of defendant's marriage to
missible under the third count of the indictment. If a second wife in the Territory of Utah, and also that
material and competent under either count at the the expression, “it being a continuous offense," was a
time it was given, it was right to receive it, and it direction for the jury to find the defendant guilty
could not properly have been excluded. There was upon the theory that if he married in Utah, and
no error here.

brought his polygamous wife with him into the TerriWe next cousider the errors alleged to have been tory of Arizona, he would thus renew his marriage committed by the district judge in his charge. These contract in this Territory, so as to make him liable to are the principal grounds relied upon for a reversal, a prosecution for polygamy, the same as though the and we have therefore considered them with great | marriage had taken place within this Territory. This care. There are isolated sentences in the charge that is the argument made. While the instruction may be were selected and pressed upon our attention at the somewhat ambiguous, we think the criticism made hearing, and as to the correctness of which, as so pre- upon it unfair, and a forced one. The court in this sented, we then had some doubts. A more carefulex: instruction had reference to the question of unlawful amination of the entire charge however has convinced cohabitation alone, and to the proof which was in the us that it is correct in law, and that taken as a whole, case showing the defendant guilty of that offense in and so read and considered, there is nothing in it of Utah.

To the proof against the defendant under the third case unfairly to the jury. The real issues upon which

count, tending to prove him guilty of that particular the jury were to pass were clearly stated, and the rules crime, it would be no defense for him to say he had that must govern in the consideration of the case, so been guilty of the similar crime in Utah. The court as to avoid a decision from mistake, passion or preju- did not intend to say, and did not say, that if the dedice, were well laid down.

fendant was actually married to his second wife in Two objections however are made to the instruc- Utah, it would not be a defense to urge that fact in tion. It is said, in the first place, that the district this prosecution to the charge of polygamy. That this judge improperly followed a rule of evidence as to is so is made clear from the balance of the charge, porproof of marriage found in the statutes of Arizona; tious of which we quote. He says: “In this case the and next, that the charge left the jury at liberty to question of marriage is directly involved, and that find the marriage of the defendant to Ann Eliza Ten- perhaps is the most proper starting point for your con Dey in Arizona from facts indicating his marriage to sideration.” Then follows a very full and accurate her years before in Utah. We will consider these ob- definition of marriage, and the proof necessary to be jections separately.

adduced in support thereof. After that the court proThe statutes of Arizova referred to provide that in a ceeds: “The next proposition involved is when must prosecution for bigamy it shall not be necessary to prove the defendant, and where must the defendant, bave either marriage by the register or certificate thereof, committed this offense, in order to make him liable or other record evidence, but the same may be proved under the indictment that is here brought against by such evidence as is admissible to prove a marriage him? He must have committed the offense within the in other cases. In his charge the ict judge re- Third Judicial district, consisting of the couuties of ferred to this statute, and said that in this case no Mohave, Yavapai and Apache, of the Territory of Arihigher or further proof of the marriage of the defend- zona, since the passage of this law that has been read aut to Ann Eliza Tenney, in the Territory of Arizona, in your hearing.” And again : “No matter what the was required than that demanded by this statute. It defendant and his wives' relation may have been in is contended that this construction was erroneous for Utah,in New Mexico, or anywhere else, if within the last the reason that the statutes of Arizona had 10 appli- | two years, in the Territory of Arizona, they renewed cation to this case, it being a prosecution for a viola

their agreement, and within the time, and within the tion of the law of the United States, and not for a vio- district named, made this contract between themselves lation of any law of the Territory of Arizona. It is

to live together as man and wife, and he introduced true that this is a prosecution for a violation of a and recognized them as such, I charge you that he is statute of the United States, but in such prosecutions guilty, as charged in the first count of the indictment, it is not an unusual thing to refer to the State or Ter- of the crime of polygany. These facts, gentlemen, ritorial statutes in matters of practice and evidence.

must be proven to you beyond a reasonable doubt. It Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. is not for the court to say how they will be proven, Toombs, 18 id. 652.

but as I said before, it must be from the evidence in But the rule of evidence prescribed by the Arizona the case." statute does not differ from the rule fixed by the Su- This instruction repeats in other language the one preme Court of the United States in the Miles case as just quoted, and to which objection was especially proper and sufficient evidence of marriage. The mar

made, on the ground alleged that it permitted the jury riage laws of Arizona would govern as the proof of to convict of polygamy on evidence of a marriage in marriage. If the principle laid down by the district Utah. While the instruction might have been plainer,

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there is no sort of doubt as to what was meant; and on the other facts in the case that bear upon the ques-
that meaning, clear from the charge as a whole, is that tion of reputation. I charge you that in a case of this
even though he did have sexual intercourse with his kind, that if the only evidence of the existence of a
second wife in Utah before his marriage to her under marriage relation between the parties was that of rep-
a promise or agreement of marriage, and this promise | utation, it would not be of itself sufficient, but it is
or agreement resulted in a marriage in Arizona, under competent evidence to consider in connection with
which he lives with her, he would be guilty. Whether the other facts in the case, to enable you to arrive at
they "renewed” their agreement to become man and the verdict."
wife is of course of no importance. Did they actually These rather extended quotations from the charge
marry here in Arizona? That was the question, and of the district judge to the jury are made because of
that question was fully and fairly submitted. It will the able and earnest argument of counsel in behalf of
not do to take a single expression like this one-"re- the defense, that the instructions left the jury at lib-
newed their agreement”-and consider it alone and erty to convict the defendant of the crime of poly-
by itself. The whole charge must be taken together. gamy upon proof of a claimed marriage in the Terri-
Looking at it in this way, we repeat the charge was tory of Utah, and upon proof of unlawful cohabitation
correct, as the quotations we make show, and the ex- alone, and without proof of marriage here. These
pressions referred to above could vot have misled the quotations show the argument has no basis in fact to
jury. But the judge, even in this, states the meaning rest upon. From the whole charge, taken together, we
of the expressions, and it is that the defendant and his are satisfied that the jury could not have misunder-
second wife must have, “in the district named, made stood the issues that were submitted to them, and that
this contract to live together as man and wife," and before they could possibly convict the defendant of
defendant must have treated her as such.

the crime of polygamy under the first count of the inThe court at further length, at the request of coun- dictment, they must be satisfied that the marriage sel for the defendant, instructed the jury as follows: with Ann Eliza was entered into within the Third “Even though the defendant married a second wife Judicial District of the Territory of Arizona. Indeed while his first wife was living, and without having ub- there was no proof in the case from which it could be tained a divorce from his said first wife, yet the jury seriously urged that the defendant was married to cannot find the defendant guilty of polygamy, as

Ann Eliza iu Utah. There seems to have been 130 charged in the first count of the indictment, unless statement made by him of sufficient definiteness to you further find that said second marrriage was con- show such marriage. In this regard the case is differtracted within the said Third Judicial District of the ent from his statements as to his marriage in Arizona. Territory of Arizona.' In giving this instruction, the These were distinctly and deliberately made, and in court said: “I charge you, and I have charged you, conection with the proof of cohabitation, were suffithat the offense must be committed in this judicial cient evidence of marriage in Arizona. district, and within the time spoken of since the pas- 6. Noticing the further objection made to the insage of this law."

struction that it too harshly criticised the offense of The court gave a further request asked by defend- polygamy and bigamy, we refer to a somewhat similar ant's counsel, as follows: “To find the defendant instruction, and in a similar case, in Reynolds v. U.S., guilty in the first count of the indictment, it is neces- 98 U. S. 145, and which was held proper by the Susary that you must find from the evidence tbat the de- preme Court of the United States. There the justrucfendant entered into a contract of marriage with Elization, speaking of the offenses named in this law, was Tenney in the Territory of Arizona, which would have as follows: "I think it is not improper, in the disbeen a valid marriage according to the laws of Arizona charge of your duties in this case, that you should Territory if the former marriage had not been subsiste consider what are to be the consequences to the innoing."

cent victims of this delusion. As this contest goes on A further request on the part of the defendant was they multiply, and there are pure-minded women, giveu, as follows: “To find the defendant guilty under and there are innocent children-innocent in sense, any of the counts in the indictments, the jury must even beyond the degree of the innocence of childhood find from the evidence that the offense charged was itself-these are to be the sufferers; and as jurors fail committed between the 22d day of March, 1882, and to do their duty, and as these come up in the Territhe finding and presentation of this indictment." tory of Utah, just so do these victims multiply, and

Again, at the request of defendant's counsel, the spread themselves over the land."
judge instructed the jury as follows: “The jury are Before leaving this branch of the case, and in con-
instructed that marriage, within the purview of law nection with the objections considered, we call atten-
upon which the two first counts of the indictment tion to one or two facts of importance. We are not
were founded, is defined to be a contract between a asked to reverse this judgment upon the ground that
man and woman, by which they agree, each with the there was not proof sufficient to go to the jury, and
other, that they will assume the marital relations and upon which they might fairly and honestly have found
live together as husband and wife.”

the defendant guilty of polygamy because of having Again, the court, on the further request of counsel married the said Ann Eliza iu the Territory of Arifor the defendant, instructed the jury as follows: zona, and at such time as to render him liable to a “The jury are instructed that evidence tending to prosecution under the provisions of the Edmunds law. show cohabitation prior to March 22, 1882, does not No argument is addressed to us on that point, nor is raise any presumption from which either marriage or any such claim made; neither could such a position cohabitation can be inferred in this case.

be contended for in view of the testimony in the case. The court, in giving this instruction, followed it up We are satisfied therefore that the jury must have unby a statement, as follows: “I stated at the time that derstood that the must find that there was a marriage evidence was offered, and drawn out by the defense, between defendant and Ann Eliza, and that such that it alone, even if you believed and are satisfied marriage took place at the time named in the indict. that they did cohabit and live together, would not of ment, and within the Territory of Arizona. Nor is itself be sufficient to warrant a verdict of guilty. It there any chance to say that the case was not fairly was admitted, and only admitted, to be considered submitted to the jury by the court. with the other facts and circumstances of the case At the request of counsel for the defendant the court bearing upon the relations existing between these par- instructed the jury "that this is a criminal prosecuties, and to enable the jury to determine and decide tion, and the defendant is presumed to be innocent,

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and it devolves upon the prosecution to prove his fendant and Auu Eliza, because both these parties guilt beyond a reasonable doubt; and the fact that knew that the defendant's first wife was still living the defendant has produced no witnesses to testify in and cohabiting with him. Upon this point we agree his behalf should not be considered by the jury in de- with counsel that under no definition of marriage, as ciding the case, but such decision must be based en

understood by Christian people-a union of one man tirely upon the evidence before them.”

with one

woman for life-can these polygamous Again, in response to a further request from coun- unions be looked upon as marriage. But counsel lose sel for the defendant, the court said to the jury: "The sight of the fact, which caused the enactment of the law presumes the defendant innocent of the crime of

law in question, that there are such arrangements and which he is charged until he is proven guilty beyond unions under which a man takes to himself two, three a reasonable doubt by competent evidence, and if the or more women, and lives with them under a claim of evidence in this cause leaves upon the minds of the

marriage, These arrangements or unions are what jury any reasonable doubt of the defendant's guilt, the the Edmunds law aims to punish and suppress. This law makes it your duty to acquit him."

was the kind of marriage meant by the district judge There are other portions of the charge which repeat in his instruction touching the relation contracted and at very great length, and over and over again, the cau- entered into in Arizona between the defendant and tion that the jury must not convict upon any other Ann Eliza Tenney. Such too is our meauing when than such testimony as would satisfy them of the

we speak of the marriage between these parties. It is guilt of the defendant beyond a reasonable doubt, and

not necessary, in order to make out the offense, that what was meant by this expression was also explained the second marriage should be a valid one. Every to the jury. In conclusion the court explained the bigamous or polygamous marriage is void, and it is charge that was made in the various counts, so that the entering into the void marriage while a valid one the jury must have understood perfectly the offense in is in existence that the law punishes. Regina v. each connt, and what proof would be necessary to sus- Brown, 1 Car. & K. 144. Neither has knowledge of the tain it, and what facts must be fonnd in order to con- fact that a prior wife was living any thing to do vict.

with the question. That kuowledge usually exists, 7. It remains to notice such other objections as were and it is one of the unfortunate consequences of the urged against the charge, mainly as to the effect of the

practice of polygamy. But for that reason shall the principles announced therein. It is said in this regard law be turned aside ? Clearly not. It is an additional that the defendant could not possibly have married reason, upon the contrary, why it should inexorably Ann Eliza in Arizona in 1883, as he had married her punish. long before in Utah. The error of this reasoning is We have now considered all the questions urged that the facts do not warrant any such conclusion.

against the conviction of the defendant in this case, We concede that if the defendant was married to Ann and our conclusion is that the conviction was right, Eliza in Utah at the time it was claimed he had sexual

and must be affirmed. relations with her there, and that such marital relation continued uninterruptedly up to the time of his

It is ordered accordingıy. indictment, he could not have been convicted in this

Barnes, J., concurs. case of the crime of polygamy. Under the statute of PORTER, J., (dissenting). I dissent from the opinlimitations this would be so, if for no other reason; ion of the majority of the court, as I thivk the de. but there is no proof of any such marriage, not even fendant should only have been convicted under the from the defendant himself, who did not see fit to go second count of the indictment, charging a violation upon the stand and give testimony as to such mar- of the third section of the Edmunds act. The groca riage or any other facts. Besides the verdict of the upon which I dissent is that the higher offense was jury is against this theory. There is some proof un- shown to be barred by the statute of limitations. It doubtedly tbat defendant had sexual relations with was abundantly proven that the defendant made such said Ann Eliza in Utah, but in the absence of proof acknowledgment in Arizona of the two women being of even a polygamous marriage between them, and in bis wives as to constitute a marriage here, just the the face of the fact established, and iudeed admitted, same as though two ceremonies has been performed; that he was already married to one wife, and living | but that same proof, and by the same witnesses, with her, we must assume that bis relations with Ann showed that the same relations existed betwen the Eliza in Ulah were those of an improper and meretri- | parties in Utah and in New Mexico at a time anterior cious sexual intimacy rather than marriage. It is to the open acknowledgments in this Territory, and a probable that these relations were under a promise of sufficient time to make the offense barred by the statmarriage some time in the future. That this intimacy ute of limitatious. My opinion is that from the time subsequently, and in March, 1883, resulted in a polyg- defendant first took on these marriage relations, and amous marriage in Arizona--and this is the effect of the held both these women out as his wives, the statute admissions of the defendant, proven in the case, and began to run. Suppose two ceremonies had been per other evidence-could not have the effect of making a formed, either In Utah or in Arizona, could the demarriage between them in Utah. Under such circum- fendant have been indicted after the statutory time stances, his first wife still being alive, he would be liable bad elapsed, though every day he declared them to the to a prosecution for polygamy in this Territory. In such world to be his wives? Is this a marriage every day, a prosecution, as was said by the district judge, he cau- and can it be a continuing offense ? Empbatically, I not be heard to say that he had improper relations say "No." In view of this condition of things, the with the same woman prior to such marriage, and Edmunds act provided that cohabitation with more elsewhere. The jury have found in this case, as we that one woman without marriages should be punishhave heretoforo said, that the marriage took place in able as a misdemeanor. The opiniou of the majority Arizona, and not in Utah, and there was proof upon of the court states that the proof only indicated a which they could so find; and they were distinctly meretricious connection in Utah and New Mexico. I told they must so find in order to convict under the submit that the witnesses showed the same admisfirst count. Is not the case on this branch perfectly sions, and the same geveral reputation of marriage clear, in the absence of improper testimony upon which and cohabiting, in each of the Territories as in Ari. such finding could rest?

zona, and therefore I think it was as much a marriage 8. It is further objected that the marriage could not there as here. Prosecutions and convictions for unhave taken place here or elsewhere, between the de- lawful cohabitation can be continuously made.

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