The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-12-15

for unlawful cohabitation with more than one
woman. The defendant objected to the giving
of any evidence, on the ground that the indict-
ment did not allege that he was a male person,
nor that the cohabitation was with the women as
wives: The principal question was as to the
proper construction of Section g. depending on
the meaning of the word ''cohabitp as used in it
Judge Blatchford, in his opinion says:
'The court properly charged the jury that the
defendent was to be found guilty if he lived in
the same house with the two women, and ate at
their res, ective tables one third of his time or
thereabouts, and held them out to the world, by
his language or conduct, as his wives, and that
it was not necessary 1T should be shown that he
and the two women. or either Of them, occupied
the same bed. or slept in the same room or that
he had sexual intercourse with either of them.
1t is the practice of unlawfully cohabiting with
more than one woman that is aimed at-a CO.
habitation classed with polygamy and having
the outward semblance. 1t is not. on the
other hand. meretricious, unmarital in
tercourse with than one wom-
an-general legislation rs to lewd
practices is left to the Territorial government;
nor, on the other hand, does the statute pry
into the marital relations. It seeks not only to
punish bigamy and polygamy when direct proof
of the existence of these relations can be made,
but to prevent the Haunting in the air OF the
world the ostentation and opportunities of big
amous household, with all the outward appear
ances of a continuance Of the sane relations
which existed before tne act was passed, and
without reference to what may occur in the
privacy of those relations. In the
spirit of the Interpretation. man cohabits with
more than one woman in the sense of Sections 3,
and OF the act, when, holding out
to the world two as his wives,
by his language or conduct, or BOTH he lives in
the house with them, and eats at the table of
each portion OF his time. although he does not
4 Al
with either of them, actually have sexual
intercourse with either of them. He holds two
women out to the world as his wives by his con-
duct when he maintains the two women and the
two children of each, all in the same house with
himself, and regularly eats at the table of each,
and acts rs the head Of the two families"
The opinion gives Webster's defi6ition Of the
word ''cohabit," and says that Section of the
act was intended to reach the exhibition of all
the indicia of marriage, household and
family twice repeated. The objections to
the indictment, because it does not aege
that the defendant was a male person.
nor that he cohabited with the two women as
wives or as persons held out as wives are over
ruled under the criminal procedure act Of Utah,
the defendant having pleaded and not demurred,
but being held to have understood distinctly that
the warrant was against male person, and not
having been prejudced by the failure to so al
lege. The opinion concludes with the state
ment that strong appeal was made in the argu-
ment not to uphold the rulings of the trial court,
because that would require poygamons hus-
band not only to cease living with his plural
wives but also to abandon the women them
selves, and the Supreme Court of the
United States was asked to ndi-
cate what the conduct of the husband
towards them must be in order to conform to
the requirements of the law. The court says
that no court can say in advance what particular
state of things will be lawful further than that
man must not cohabit with than one
woman. in the sense of the word ''cohabit" as
defined. While Congress had legitimatized the
issue of polygamous marriages, born before Jan.
l. 1883. it had left the conduct of the toward
the polygamous wife to be regulated by consid-
erations which, outside of Section 3 are not Gov.
cred by the statute, and which must be dealt
with judicously when properly presented.
From the decision of the court Justices Miller
and Field dissented Justice Miller, in his dis
senting opinion, says: Il think that the act Of
Congress, when prohibiting cohabitin; with more
than one woman, meant unlawful sexual inter
course 1t is, in my opinion, strained
struction of highly penal statute to hold that
a man can be guilty, under that statute, without
the accompaniment of actual sexual connection.
know of no instance in which the word 'cohab-
itation' has been used to describe criminal Of
Tense when it did not imply sexual intercourse
In the lower court the defendant was sentenced
to pay fine of 5000 and to be imprisoned for six
months, and to be- further imprisoned till the
DaYment of the fine.