Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-04-29
CANN0N'S COHABITATI0h
What Acts Are Necessary to Constitute
the 0ffense.
Judge Zane's Lengthy Opinion On This
Question.
The Case Goes to the Jury and Yer
diet of Guilty Returned.

Gates of the Salt Lake bar. MI. NaTlah,
who opened the discussion, was followed
bv Messrs. Sutherland and kirkpatrick
on behalf of the defense. The position
assumed bv them was that the term CO
habitation meant actual sexual inter
course, and that was the construction
placed upon it by the defendant. 1t would
therefore be competent to show that he
complied with the law as he understood
it. Judge Kirkpatrick quoted a clause
from Judge Zane's charge to the jury in
the Clawson case, as follows: Cohabita-
ton, in the legal sense, as applied to this
case, is living together as husband and
wife, or under such circumstances as
would lead to a reasonable belief OF the
parties sexual intercourse.
When Judge Kirkpatrick had finished
court was adjourned until 10 O'Clock this
morning.
THE DIS CUssION RESUMED.
The discussion was continued this
morning by Arthur Brown, Esq, on be-
half of the defense. He took the position
that the intention of the Edmunds law
was TO prohibit sexual intercourse be-
tween those who had married previous to
the passage of the act and not to prevent
the polygamous husbands from support
ing their wives and children. This was
the entire object and aim of the Edmunds
act. "Bishop on Marriages and Divorces"
was quoted to show that refusal to have
sexual intercourse on the part of husband
or wife, constituted desertion. The term
Giving together as husband and wife,
could mean nothing else than living to-
gether with sexual intercourse. The
charge of Judge Zane to the jury in the
Clawson case was alluded to and the fact
that it had been adopted and affirmed by
the Supreme Court of the United States
gave it additional weight. The fact that
Rudger Clawson was married to his
plural wife did not constitute cohabita-
ton, but it was the secret intercourse
that made the offense.
Mr.. DICKSON
Then arose to close the argument, and
commenced with a reply to some of the
positions assumed by Mr.. Brown, and
! different construction was placed on the
authorities quoted and rulings cited by
! him. Ii the intention of the Edmunds
act was simply TO prohibit sexual inter
course, it was strange the object had not
been expressed with more certainty. The
! opinion of the Supreme Court inthe Com
missioners' cases did not indicate that the
court understood cohabitation to mean
actual sexual intercourse. 1t was poly
gamist's privilege and duty to support
and educate his polygamous children and
to support his pOlygamous wife, but it
was not necessary in order to do that for
! him to cohabit with her as his wife. The
meaning of the word cohabit depended on
the connection with which it was used.
There never was a photographer who
construed the term to mean
sexual intercourse. Webster defines
1 it as living together as hus-
! band and wife," and Worcester's
definition is in substance the same. The
primary meaning of the word cohabit is
''to dwell with some one" Whenever
the courts have been called upon to de-
termine the meaning of the term they
have placed the same construction upon
it that the prosecution does in this case.
The intention of Congress in framing the
Edmunds law Was to eXtirpate the sys-
tenn of plural marriage in practice in
Utah, and not to punish adultery or other
sexual offenses that are regarded as evils
by all classes. Those crimes were left to
be regulated by the local Legislature.
The polygamic and monOgamic systems
of marriage were so antagonistic that they
could not both exist side by side. The
polygamic would supplant the monoga-
mic unless repressed by legislation. The
evil influence exerted by polygamist
living together with several women as his
wives was sought to be arrested by this
act.
The question was submitted to the
Court at 1890, and Judge Zane an
nounced he would give his decision at 2
O'Clock, until which hour court adjourned.
THIS AFTERNOON.
The usual jam of spectators filled the
court room this afternoon and immedi-
atelv after court was called Judge Zane
delivered his decision. The opinion was
oral and was very long, its delivery occu-
pying over an hour.
THE DECISION.
The court first reviewed the proceed
ings in the case, the testimony of the
witness, Clara c. Cannon, and the ques-
ton propounded to her by the defense
was read by the stenographer.
The counsel for the ,vernment had
objected to this question, as having an in
tention to show that defendant did not
occupy the same bed room or bed with
the witness, and as tending to show the
! absence of sexual intercourse, and the
counsel for both sides have treated the
question as asked for that purpose. The
| Court proposed to treat it as if asked for
that purpose, and to pass upon it as
such. The counsel for the government
took the position that it was immaterial
whether sexual intercourse Was
practiced to constitute co-habitation
Their view was that if the defendant
LIVED IN THE SAME HOUSE
With these two women and held them
out to the world as his wives it was i'm
material whether they occupied the same
/ bed. The counsel for the defense insisted
that it was essential that it he made to
appear that the defendant actually had
sexual intercourse with both of these
women in order to prove unlawful coha
btation.
The section of the Edmunds law under
which this prosecution was brought, was
read by the Court. The counsel for the
respective parties had given to the word
"cohabits" cohabitation = different
meanings.
When the language of an act is clear
and the meaning is clear, there is no
room for construction, but if
THE IMPORT is DOUBTFUL
1t is the duty of the Court to construe it
in tine light of the rules that have been
established through the ages One of
these rules-and one that is probably al
ways resorted to-is that the language to
be construed must be considered in con-
nection with the entire act in which it
occurs, and another familiar rule is to