The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1886-01-29
Arguments Before the Su-
preme Court Yesterday.
JUDGE HARNESS SPEAKS.
Synopsis of the Remarks by Hon. F.
:. Richards-The Case Submitted
Court Adjourns.

argument III tue Cupl CllC NOdI SOolSA
day, and occupied nearly the entire day
Judge Hardness and Hon. +. S. Rich
ards appeared for Mr.. Snow, and Mr.
Dickson for the government.
Judge Hardness made most ex
haustiye and convincing argument
going over the testimony in the case
and claimed that it was not sufficient c
convict. There was an error, said he
in refusing to instruct the jury, as re
quested by the defendant. in regard to
the proper definition of the word "co-
habit" and the court had said to the
jury, that "the offense of cohabita ton
is complete when man, to all outward
appearances. is living and associating
with two or more women as wives q
Judge Hardness insisted that the "out.
ward appearances" of living together
lead the jury; it gave them way to
said he, 1--WE all know how apt jury
of their kind are to catch an opportunity
to convict an Apostle of the Lord"
He was here interrupted by Judge
Powers with the remark, 1--WE do not
know just how apt they are, as they
had but one chance.
JUDGE Hardness replied: "Well, we
may perhaps judge by the zeal they
showed in that case, what they would
do with Others if they had the chance.
Another error of the court below was in
refusing to charge the jury that the
defendant, though living with one wife,
could lawfully visit another and her
children at reasonable times and for
lawful purposes; and the purposes oil
inquiring concerning the health and
welfare of such other wife and his
children by her, of providing for then
support and the education, employ
ment and business of the children
would be lawful"
JUDGE PoWERs-"The evidence went to
show that he visited the children-not
the wives"
JUDGE HARKNEss- remember 1t as
being that he visited the children as
well as the wives; the wives were there. y
JUDGE POWERS is no evidence
to show that he ever visited his wives.
1t was his children"
JUDGE Hardness Then
the prosecution had no case"
JUDGE POWERS latter pause)-"Well
that is the evidence"
JUDGE MISUNDERSTANDING, said
the expression associates with them as
a husband" was too indefinite for the
Jury to determine what was meant
under the instructions. The court
below had also stated, "The Edmunds
law saws there must be an end TO the
relationship previously existing between
polygamistS. 1t says that relationship
must cease" To this instruction Judge
Hardness said: The Edmunds law
does no such thing. 1t says that polyg-
amous marriages must cease, by pro
hibiting those marriages. Section
saws that cohabitation must cease, by
prohibiting that cohabitation. But it
nowhere says that the relationship. of
marriage must cease, but on the con-
trary, permits it TO continue, and
excludes from voting those remaining
therein"
DISTRICT ATTORNEY DICKsoN-'lt that
is a proper construction of the words OF
the court admit that it is error"
JUDGE HARKSEss-The Court err in
Notwithstanding the jury that ''having
more than one wife and claiming and
introducing more than one woman as
wives, do not constitute the otfense
charged. You must find, to justify a
conviction, that he has lived with more
than one within the time stated in the
indictment" Also, in charging the jury
in the second case, that, IF you find
beyond reasonable doubt, that the de-
PENDANT had. during the year 1884.
legal wife living in Brigham City, Box
Elder County, Utah Territory, from
whom he was undivorced, that he recog-
nized her as his wife, held her out as
such, and contributed to her support as
such wife, and that during the same
year he lived in the same house with the
woman Minnie, recognizing her as his
wife, associated with her as such. and
supported and held her out as his wife,
then the offense of unlawful cohabitation
Is complete, and you will find the defend
ant guilty. THE defendant maintained
that there was no theory upon which
such proposition could be sustained,
as any such presumption was
rebutted by the testimony of the sup
posed legal wife, and in effect such a
presumption would make the poiyg-
amous status necessarily criminal,
which would be giving to the law an
unconstitutional construction.
Hon. F.S. RICHARDS said ne had suppos-
ed it Settled by the decisions of this court.
and those of the Supreme Court of the
United States that unlawful cohabita-
ton consisted in the living or dwelling
together of man and more than one
woman, and the holding ont oy the
man of the women as his wives. But
in the cases at bar it was contended that
the living with eae woman and the ac-
acknowledgement and supporting OF an
other as the legal wife constituted the
although the appellant had
not lived with the legal wife at
all. He insisted that this was
not the law. II Congress had
10 prohibit man from living
with any other woman than his legal
wife, it would have so deelered In un
eluivocal terms. 1t was not difficult TO
fiud language to express that idea. Had
such been the congressional intention, ;
it would have said that every male
person who cohabits with any other
woman than his legal wife shall be
guilty." instead of saying that every
male person who cohabits with more
than one woman shall be guiIty.n
Under the present statute, the
offense was not in cohabiiing
with some other woman besides
the legal wife but in cohabiting with
more than one woman; and cohabitipg,
as construed bY the Unlted States