Salt Lake evening Democrat. [volume] (Salt Lake City, Utah) 1885-1887, 1885-06-29

status of a polygamous marriage and
Capitalization between the parties. Inc
former is not unlawful, and its continuance
affords no ground for inference OF the fact
of cohabitation. It is not necessary thaI
the parties to polygamous marriage shouio
divorce themselves IN some efectual way, Ill
order to entitle themselves to the presump-
ton of innocence of the ofense of cohablta-
ton" There can be no question but that
this instruction is proper, and should M nave
been given, and it's refusal was error mat
it was proper is readily seen by an exam1na,
ton of the case of Murphy VS.. Ramsey, liz
u. s. Is.
The defendant also asked the court to IN
struct the jury that 'there IS no duty on the
defendant to produce in court his children,
or the women mentioned in the Indictment;
nor is there any evidence that the defendant
has had any agency in keeping them away,
or In preventing the service OF subpoena on
them, and the jury are not authorized TO
draw any inference against the de1endant
from their absence" This request Is
proper, and should have been given. Inc
only reason that can conceive TOR It's re-
fusal and the failure of the court to say
anything upon this subject in his charge,
after the matters had arisen upon the tr!ai,
and III the course of the argument to Whlcn
l have referred, is that the judge must have
believed that the jury were entitled to draw
an inference against the detendant on ac-
count of the absence of those parties. AT.
ter the court had given this charge, one OF
the counsel for defendant called the atten-
ton of the Judge to the fact that 1t had
been argued to the jury that there is no pre-
sumption of law that on the passage OF the
Edmunds Act those who had lived III poly
gamy before ceased to do so, and the de.
fendant's counsel called the attention OF
the court to the fact that at the time OF the
IL III NNA %
prosecuting attorney, and requested
charge upon this point, to which the court
replied. II did not wish to charge upon
that point: have charged the jury that
the law presumes the defendant innocent"
The instruction requested by the defend
ants counsel should have been given, and in
not giving it the court virtually allowed the
jury to believe that there is no presumption
of law that at the passage of the Edmunds
Act those who had lived in polygamy be-
fore ceased to do so. In my opinion such is
the presumption of law. The court was also
requested to instruct the jury that evidence
of anything that transpired between the
parties-the defendant and his alleged
wives-or their relationship between each
other, prior to the date named in the indict-
ment, IS immaterial, except for the purpose
of illustrating their conduct afterwards
The request should have been given, and so
ought the jury to have been instructed, as
requested by the defendant, that evidence
has been introduced tending to show the
keeping of record of baptisms and
blessings by the clerk of the ward
in which the defendant lived. That
evidence could only be material
for the purpose of showing that the
defendant had nominated some of his chill
dren for either of those rites, and if the jury
find that this defendant did not have the
names of any of his children entered in that
book, then that entire testimony becomes
immaterial.''
l have already called attention in the
opinion filed in the Cannon case, to the
various requests for instructions, which were
made in that case and refused by the court
The same requests were made in this case
and refused by the court. That refusal was
error. The error is more apparent in this
case, the testimony being less substantial
than that of the case of the United States
vs.. Cannon.
For the errors that / have pointed out, as
well as on account of many others apparent
upon the record, l dissent from the opinion
of the majority of the Court, and l believe
that the defendant Musser should have a
new trial granted him, because the record
discloses that the trial which resulted in his
conviction was not fair trial.
ORLANDO W. POWERS