Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-06-29
DISSENTING OPINION
OF Mr.. Associate Justice Powers In the
MusSer Case.
He Dissents, the Public Dissent and
Everybody Descants.
The Supreme Court Scored, but That
Don't Score for the Defendant.

SO much has been said regarding the
dissenting opinion of Judge Powers in
the Musser case, that we print it Uerbatina,
and knowing our readers desire to read it
for themselves as it is and not in con-
densed form. The following is the text:
In the Supreme Court Of the Territory Of
Utah:
JUNE TERM.
| The UNITED STATES, Plaintiff,
| VS..
4 A. MILTON MUssER
Defendant and Appellant.
DISSENTING OPINION OF POWERS, J.
This case was argued at the same time as
the case of the United States VS.. Angus M.
| Cannon, and many of the objections here
raised were discussed in the latter case, and
are considered and determined in the opin-
ions filed. 1t is, therefore, unnecessary to
refer to the question raised as to the proper
construction of the Edmunds Act, so-called.
There are, however, some features entirely
different and distinct, raised by the record
| in this case, from those that were raised and
decided in the Cannon case, and while my
| brethren are of the opinion that there is no
error shown in the record, l am so clearly of
| the opposite opinion, and SO well convinced
that a new trial should be ordered, that l
dissent from the opinion of the court, and
present herewith my views:
l. The first point that is raised by the de-
PENDANT is that there was not sufficient evil
dence to justify the verdict of the jury for
the offense as defined by the court.
While careful reading of the record dis
closes that the testimony was somewhat
weak, still I am not prepared to say that the
case should have been taken from the jury,
and indeed, in the view that take of the
case, and with the manifest errors that the
record discloSes, it Is not necessary that
should determine that question. may, how
ever, in passing, refer to one matter. 1t Is
contended by the defendant that his entire
conduct towards the women designated as
his wives, as shown in the testimony, was
not only proper, but cOmmendable. 1t is
argued that as he had previously had chill
dren by these women, and that these chill
dren had been legitimated by the very act
which makes it misdemeanor for male
person to cohabit with two or more women,
that the defendant was under moral obliga-
ton, if not legally compelled so to do, to
support his children and their mothers. That
he therefore had right to live with them
under the same roof, to eat with them at the
same table, to confer with them and to con-
verse with them; to call them by his name,
and to treat them in as friendly manner as
he chose so long as he refrained from sexual
intercourse with the women.
The defendant claims that there is no law
that requires him to divorce himself from
the women. That is true, but the effect of
the EdmundS act is to require him to treat
these women substantially as he would be
required to treat them if he had been di-
vorced from them by court of competent
jurisdiction. In my opinion, a man who has
heretofore contracted polygamous marriage
and has had children by two or more women,
is required, as l have stated, to treat those
women precisely as he would be required to
treat them if he had been divorced from
them. A man divorced from woman is
under legal obligations to support his chill
dren. He may be required by the decree of
the Court to support his wife and to pay to
her stated sums at stated intervals, but, with
the exception of the business relation which
exists between him and his former wife, it
is not expected that he will have any further
intimacy with her. He may visit his chill
dren he may make directions with regard to
their welfare, he may meet his former wife
on terms of social equality, but it is not
expected, after the decree of divorce that
he will associate with his former wife as a
husband associates with his wife, that he
will live under the same roof, and, to out
ward appearances, live with her as a husband
lives with his wife. The Edmunds law says
that there must be an end, and it puts an
end, to the relationship previously existing
between polygamists, whatever it was. 1t
SAYS that that relationship must cease
2. On the trial of this case, Bishop War
burton, of the Mormon church, and Charles
Brown were sworn as witnesses for the
prosecution. Brown is the ward clerk, and
he testified that there is record book kept
in his ward-which is in the same ward in
which Musser lived-of the births, baptisms
and blessings of children. He stated that
as clerk of the ward it is part of his duties
tO keen Such hook and he &c ito
From his testimony it appeared that about
six months previous to the trial the book
mysteriously disappeared. The witness
stated that he did not know where it was.
that he had made efforts to find it, and that
he had been unable to find it. He stated
that the book contains, in addition to the
record of baptisms, the names of the child
and its parents Bishop Warburton testified
that he did not know where the book was,
or by whom it had been taken, and stated
that he never had blessed any of defendants
children. The question was put to Brown
after he had testified that the book had
been taken from his custody, as follows:
by whom was it taken?' and defendant
objected, on the ground that the testimony
was immaterial; the Court overruled the OBJ
lection and the defendant excepted and the
witness testified that he did not know: the
defendant also objected, on the ground that
the testimony was immaterial and irrele-
want, to the testimony of Bishop Warburton
as to his administering blessings to children.
and an exception was taken to the admission
of the testimony.
This testimony was all clearly immaterial
and irrelevant, and should have been strick-
en- out by the Court, and the Jury instructed
not to consider it. True, there is very little
in it that may be said to directly iniure the |
defendant, but IN Its very immateriality the |
danger lies 1t tended to distract the atten- !
ton of the jury from the real issue. and |
would have natural tendency, by leading |
their minds from the question as to whether |
the defendant was guilty of cohabitation TO
consider the peculiarities of the Mormon
Church organization, and to direct their
attention prominently to the fact that the
defendant was member of the Mormon
Church and to consider that an element of
the offence. There was also danger that
the jury might infer that the defendant was
IN some way connected with the loss of the
book inquired after, when there was no
proof on that point. But as the record dis
closes that the defendant did not see fit to
avail himself of his right to move TO strike
out the testimony, and did not object to
many portions of it that were clearly mad
mlsslble, 1t therefore is not necessary to fur
Their consider this testimony at this point
and 1t Is only mentioned at this time on ac-
count OF the bearing that it will be seen to
have on this case, when we come to consider
SOllle IuTbLST developments IN II, and also |
the charge OF the Court and the requests for
instructions that were presented by the de-
PENDANT.
3. The next point that is made by the de-
PENDANT is of more Importance After the
evidence had been closed, the Assistant Dis
trict Attorney, in making the closing argu-
ment for the prosecution, stated to the jury.
in substance, that it was within the powerof
the defendant to show all the facts in his
defense, by his wives and children, bat that {
It was not III the power of the prosecution to
show the facts by them, because they had
been put out of the way by the procurement
IF the defendant. One of the counsel for I
he defendant objected to this line of argu- I
nent, and the Court thereupon remarked: Il {
,unnoSe there is no eNidenca &c To how thou | ,