Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-06-13
POWERS ON POLYGAMY.
The New Associate Justice Places
Himself on Record.
An Opinion in the Simpson Case Sus-
tanning Judge Zane.
Validity Of COnsensual Marriage, or
POiygamy Could Laugh at
the Law.

Inc OplIllOH VI OuuSO ~ " O'
concurred in by Judges Zane and Bore
man. in the case of the United States,
RESPONDENT, VS.. Thomas Simpson, appel
liant. was delivered this morning in the
Supreme Court. Judge Powers read the
decision aloud in plain, clear manner.
The defendant was indicted for po-
lvgamv, tried, convicted and sentenced
to the Penitentiary. The substantial
ayerments of the indictment were that
that he intermarried with one Emma
Everett, while at the same time his law
full wife, Hannah Powell Simpson, was
living. The Court charged the jury that,
if the evidence convinced them, beyond
a reasonable doubt, that the defendant
married Emma Everett, as charged, and
that at the same time he had a lawful
wife living, then they should find a YER
dict of guilty, provided that the jury fur
Their found that the first marriage was
lawful. The jury were instructed that to
establish the fact of marriage it was
NOT NECESSARY TO PRODUCE A MARRIAGE
CERTIFICATE
Or anv record evidence. Neither need
eve witnesses of the ceremony be sworn; ;
that marriage may be proven like any
otherfact by the deliberate declarations or
admissions of the defendant, but that the
defendant could not be convicted unless
it was found beyond reasonable doubt
that he was guilty as charged in the in
dictment. The jury were also informed,
that they were the sole judges of the
credibility of the witnesses and of the
weight to be given to the testimony.
The defendant urges that the court erred
in charging the jury that they could in
fer marriage from the deliberate state
ments or admission of the defendant.
None of the testimony is brought up
into the record we must, therefore, pre-
sumo that there was evidence to sustain
the charge; that Hannah Powell Simp-
son actually existed. and that the mar
riage took place in this Territory. In
order to have arrived at verdict of
guilty, under the charge as given, the
Jury must have been convinced beyond
reasonable doubt that lawful marriage
had been entered into between this
woman anu JuS U6IeUudIU.
In this Territory there is no law regu-
lating marriage. No form or ceremony
is required and no record of marriage is
kept. Marriage is left as it was at the
common law and
A CONSENSUAL MARRIAGE is IN ALL RE-
sPECTS VALID.
There need be no witnesses present. If
the parties are competent to contract, all
that is essential is a present agreement.
The marriage is complete when there is a
full, free and mutual consent by parties
capable of contracting, although not fol-
lowed by Capitalization.
Here some ten citations to cases were
made from different authorities.
Capitalization is but one of the many
incidents to the marriage relation. 1t is
not essential to it. (See Murphy VS..
Ramsey ia U. S. 42.) Under our law, a
marriage depends solely upon the mutual
consent of the contracting parties. They
may enter into the marriage relation
secretly, and the fact may be unknown
to all save the mainland woman. AS was
said on the argument, couple may meet
on the highway at any time in the day or
night, and there contract a valid mar
riage. Whether it tends to good morals
to leave the matter thus loose and COM
pletely at the will of the parties, it is not
for us to discuss. That is
A MATTER FOR THE LEGISLATURE.
We have to take the law as we find it.
No particular form or ceremony being
essential, and no witnesses being required,
the question that arises is, how shall the
fact of marriage be proven? Surely it is
not necessary to produce a marriage GER
tificate, or record evidence, for the law
requires none. Clearly the ceremony
need not be proven by eye witnesses, for
marriage is valid without witnesses,
and no ceremony is necessary. If evil
dence of that nature was required, peo-
pie might transgress the laws prohibiting
polygamy with impunity. A man could
secretly marry as many women as he
pleased, and the law could not reach him.
Proof that two parties have treated each
other as husband and wife, have lived
together as such, and
HAVE "HELD EACH OTHER OUT" TO THE
WORLD
As such, is sufficient to enable a cou, or
jury to find that at some previous time
the parties did, as a fact, agree to be hus-
band and wife. This is the conclusion of
all the decisions of authority. The pre-
vious actual consent or agreement to be
husband and wife is the ultimate and es-
sential fact the jury must find The mode
of life, the holding out, the declarations
or admissions of the accused, and the
like, are circumstantial evidence from
which the fact may be inferred.
THE CONCLUSIONS.
The conclusion at which we arrive is.
that in order to prove the first marriage.
on an indictment for polygamy, it is not
necessary to produce eye witnesses of the
ceremony. Neither is it necessary to
produce marriage certificate or other
record evidence. Marriage may be
proven by the declarations and admis-
slons of the accused, and such declara-
lions are proper to be considered by the
jury as tending to prove an
actual marriage. If such declara-
lions convince the jury beyond a
reasonable doubt the parties were
married, that is all that is required.
While the instruction complained of
might have been more carefully worded.
still, the charge when taken as a whole
carefully guarded the rights of the de-
PENDANT, and he was not injured thereby
and the judgment of the court below
should be affirmed.
ZANE, Chief Justice, concurs.
FOREMAN, Associate Justice concurs.