Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-27
THE UTAH DIVORCE.
HOW IT WORKED IN Dr.. ARMING.
TOMS CASE.
The Patent Utah Arrangement Not Very
1afe In Mjnnesota--It Don't Count In ARM
ington's Case. Hence He Has Committed
Bigamy.


ington's Case. Hence He Has connmitted
Bigamy.
IT will be recalled by many that Dr.. Arm
ington of Northaeld, MINI, obtained one of
those peculiar Utah probate court divorcee,a
year or two ago, and subsequently married.
He was prosecuted, convicted of bigamy, but
to postpone the evil day when he must en-
ter prison, he appealed to the supreme court.
The following decision was rendered against
him yesterday:
7As State Of Mtnnesota Respondent, vs John L.
Arlington, Appellant.
OPINION.
The subject of challenging jurors in this
State il made matter of statutory regulation.
1t is made the duty of the court to inform the
defendant before juror is called, that, IF he
intends to challenge an individual Juror he
shall do so when the juror appears and before
he is sworn" (Gen. st. Oh. ZIG. Sec. 10) "a
challenge to an individual juror is either per-
emptory OF for cause, Qsec. 11.) 1T shall be
taken when tho juror appears and before he is
sworn" (Sec. 1927 1t is also provided that, ''all
challenges to an individual juror shall be taken
first by the defendant and then
by the State and each party
shall exhaust all his challenges before
the other begins" (Seo. S3). A peremptory
Juror for which no reason need be given, but
upon which the court shall exclude him. QSec.
IS, as amended by act of March s, 1869. If
the offense charged is punishable with death or
with imprisonment for ife the State is entitled
to seven peremptory challenges and the defend
ant to twenty. For any. other cffense the State
Is entitled to two and the defendant to five
save as above, the statute is silent as to the
time when the right of peremptory challenge
shall be exercised by the accused, neither does
it contain any provision like the Wisconsin
statutes, under which the case of Lamb VS.. the
State, (s6 Wis. 42s) cited by appellant was de-
scribed, plainly implying that jury must be
be required to exercise his right. On the con-
trary, the foregoing provisions seems clearly to
indicate that each party is required
to make and exhaust all his
challenges to each Juror as and when he is
called before he is sworn and in tho same order
stated, and such in effect was the ruling of
this court in The State VS.. Brown, IL Mimi,
598, in which it was held that the course pur-
sued by the court in swearing each juror separ-
ately and before the full jury was present in the
box was correct practice under the statute.
The Indictment in this ease follows the pre-
else form prescribed by the statute for an in
dictment of this character (genl. st., oh. 1O8,
[Bilansky vs. State, 8 MIMI, AT; State vs.
Ryan, Is Mimi, $40; State vs. Thomas 10
Mimi, 4s4) The gist of the ofensc charged
was unlawfully contracting second marriage
with the party named in the Indictment while
the accused had wife then living.
eko I'D
precision to .pprise him Of the
particular offenss which he was required to
meet, and as the general averment shat he had
wife then living was sufficient under the
statute to admit proof Of the former marriage
and its validity, it was unnecessary to state in
where it was contaminated, or the maiden name
of the former marriage.
(See Hutchins vs the State, % Ind, "a;
State Va. Bray, 13 In. IN. C.) 1891
Another error alleged by appellant is upon
the ruling and instruction of the trial court
upon the suf6ciency and effect of the evidence
which was introduced to establish the existence
Of the defendant former wife.
In order to q convection in a case of this
character the rule undoubtedly requires proof
by competent evidence of prior legal marriage
in fact, and such fact must be established
to the satisfaction Of the jury beyond a reason
able doubt: Formerly such fact could only be
has been changed by our statute Gen. Stat,
CHI IS, title X1, Sec 89) which in terms enacts
that where the fact of marriage is required
and offered to be proved before any court, evil
dence Of the admission Of such fact by the
party against whom tho proceedings are insti-
tuted, or of general reputo cohabition as mar
ried persons, or any other circumstantial or
presumptive evidence from which the fact may
be inferred, shall be competent Under this
statute indirect and circumstantial evidence
of the character indicated not only admissible
in all cases for the purpose of establishing the
fact Of marriage, but'such fact may be proved
by such evidence alone. whatever
to produce upon the mind of the jury that de-
gree Of conviction requisite in all criminal pro-
ceedings.
(The State vs.. johnson, ~, MINI. 476). In
reference to this matter, we discover nothing
in the conduct of the trial, or in any ruling Of
the district court at all, in conflict with these
views, or calling for new trial. The indict-
ment alleges that defendant ''unlawfully mar
risd one, Susie E. Roe. whose true name was
and is Susan E. Weller" It ia objected that
the court erred at the close Of the testimony,
for the proseoution,in not granting defendants
motion to dismiss, for the reason that there
was mo evidence to prove his defendants
ment a. to the name, was descriptive of the
person, and not of the offence. Its only Of
ice of Importance, was to designate and iden-
tify the particular individual, with whom
it was alleged the defendant
formed the unlswful marriage relation. The
Roe" The proof showed that the person
whom in fact married, bore that name among
her acquaintance and at the time of her mar.
riage to defendant. She is thus described in
the :" License to Marry" and the g Certificate
of Marriage" which were introduced in evil
dence. Her identity is unquestioned, and
there is no pretense that the accused was misled
by the additional descriptive averment in the
Indictment that "her true name was, and is
Susan E. Weller" Whether, therefore, it was
sufficiently proved or not by tho evidence, is
immaterial.
The remaining question for consideration
relates to the decision of the court excluding
decree of divorce of the probate Court in
and for Box Elder comfy, in Territory of
Utah. entered in that court at q
special term on the 18th December, 1876, in an
action between John l.. Arlington, plaintiff,
vs.. Martha F. Arlington, defendent, dissolv-
Among the objections made to this evidence
was the one that, at the time the decree pur-
ports to have been rendered, both parties
thereto were residents of this State, and had
been for several years prior. When this evil
dence was offered it incontestibly appeared,
the defendant and his said wife, Mrs. Martha
F. Arlington, had been resident citizens of
this State and domiciled therein for over nine
years prior to the date of the decree, ard that
they were both actually living in this State at
the time of the entry. It did not appear, nor
was any offer made to show the fact that either
had ever been domiciled, even temporarily,
within the territory of Utah; and as
to Mrs. Arlington, it is quite
clear that she never at any time during
the progress of the proceedings in eaid court was
outside the limits of this State or within the
territorial limits Of Utah, as to Mr.. Arlington
the most that can be claimed from the evidence
is that he temporarily left his residence in