The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-06-30
THE SUPREME COURT.
An Opinion in the Maughn
HabeaS Corpus Case.
A KICK AGAINST JUDGE ZANE.
The Receivers Council Think That He Should
Have no Say in Matters Pertaining to
the Receivership.

the decision in the Maughn habeas corpus
case.
The Maughn Case.
The following opinion was read by JUS
tice Anderson:
Thu etitioner alleges that he is a
prisoner in the custody of Frank H Dyer,
United States marshal for the territory OF
Utah in the penitentiary of said territory
for criminal offense against the laws of
the United States to wit: adultery.
That sucu confinement is by virtue
of a judgment warrant and the
proceeding of record, including three in
dictnents against him, his arraignmcnt
thereon and pleas thereto, respectively,
and convictions thereon upon his pleas of
guilty thereto. A copy Of the record is III
each case attached to the petition.
He alleges that under the Judgment
in two of the cases he has been in
prisoned in the penitentiary for more
than six months and has paid
fines and costs adjudged against him
therein. That he is now imprisoned under
the other one of the judgments rendered
against him and that such Imprisonment is
Illegal for the reason that the court had no
jurisdiction to pass judgment against him
in said case; that the two judgments
prisonment and paying the fines and costs
adiudged against him therein were both
foj. the crime of unlawful cOhabltatlOn,
and that he is now imprisoned under the
Judgment of the court rendered against
him on the indictment for adultery; that
the offense is the same OifcnSe Tor which he
mas suffered punishment under the other
indictments and that the Rachel Wood
ward mentioned in the Indictment for
adultery and in one of the indictments for
unlawful cohabitation is one and the same
nerson. and that he is being punished
twice for the SAINT Offense; that the
court had no Jurisdiction to render
Judgment against h -. on his plea of guilty
to the indictment for adultery, and that the
same is void and he prays TO be discharged
from Imprisonment hereunder. a writ of
babeas corpus was heretofore issued in the
case and the petitioner produced i'll court
bv the United States marshal.
From the exhibits attached to the petit
ton il appears that on the 9Th day of Jan
nary 1856. petitioner was indicted in the
district court of the first judicial district
for the crime OF unlawful cohabltauon, al
lared to have been committed between Au-
gust l, 1884, and December 10, 1888, by liv
ing and cohabiting during said period Of
time with Barbara Maughn, Elizabeth
Hui. Gardner Maughn, Maggie Nibley,
MARY Hale Maughn, Rachel Woodward
Maughn and Francis Nibley MaUghn. as
his wives. This indictment IS Gesig-
mated rs No. Isl. The indict
ment was found upon the testimony
OF G. L. Lowe and Thomas Grant Nc
vembcr Q, 1885 petitioner was arraigned
and pleaded not guilty. November p, 1883,
nptitioner changed his plea Of not guilty to
thatOf guilty. January 3, 1889, petitioner
was sentenced by the court to pay fine Of
SiuA and g.}4 costs, and be imprisoned III the
Daniteutiarg six months the Imprisonment
10 commence 20 run from said date.
Italso appears that on the 23d day Of No
yembcr. 1855, the petitioner was indicted
in said district court for the crime OF IN
lawful cohabitatiou with Barbara Maughn,
Elizabeth Maughn, Margaret Maughn,
Mary Maughn, Rachel Woodward and
i1Dhira Maughn, by living and cOhabiting
with said women as his wives from the
I5th day of January. 1856 to the 23d day of
Novenpcr. 1888. TniS Indictment Is deSig-
mated rs No. 1890. and was 70 nd npOn
the testimony OF the petitioner
alone who voluntarily appeared be
fore the grand Jury at his own request
and cave testimony. On the same day ne
Innpared in open court, was arraigned and
ntsoda5 guilty to the Indictment January 3,
1854 Petitioner was sentenced by the
oourt TO pay a fine OF 500 and S3l costs,
and he imprisoned in the penitentiary six
months. the Imprisonment to run from said
date. acknowledgements.
If further appears that petitioner was also
indicted in said court on the I'D day OF No
vember, 1888, for the CRIME OF adultery al
legad to have been committed on the lst
day of October, 1887, with one Rachel
That said indictment was de
.ignated as No. 1891 and was found on the |
ta9+innonv of Joseph Howell. That on said |
ToVember %. petitioner was arraigned and |
nleaded guilty to the Indictment and on the !
I'd day OF January, lSS9, was sentenced by |
the court to be imprisoned IN the penltentI-
5,.I, two wears and six months and pay the |
80 a. and nrosecution, amounting to so.
From the foregoing it will be seen that |
De+itioner was regularly indicted, convicted !
md sentenced for the crime of adultery,
mon mis- plea Of guilty made IN open court.
There is no illegality appearing anywhere
N +he record of the case. 1t does not
annear. in which of the three cases the plea
1f entity was first entered nor IN which
,ase judgement was first rendered 1t does
not annear that the Rachel Woodward with
,yborp petitioner committed adultery on the
ct dav of October 1887, was the same
2acbei Woodward with whom he unlaw
'uIlv cohabited from the 18th day OF Janu-
~ 1856 TO November 23rd, 1888. If such
,-Se the fact and it had been properly
Headed and proved on the trial, 1t would
nave constituted a good defense to the
Indictment for adultery; but this court
.aunot, on habeas corpus, hear evidence
,oT determine the questions from anything
,n+sida of this case. Counsel for petit {
Toner insists that the records attached to {
nc natition show that the adultery was !
.omTnitted with one of the same women, !
o-I[,i+. Rachel Woodward, with whom he
lad unlawfully cohabited because of the
IDENTITY of the name in the indictment
numbered 1890 and 1891, and cites Whar-
on's criminal evidence, Sec. SO2 and State
IS. Kelsoe, 76 Mo. sos.
THESE authorities go no further than to
av down the doctrine that identity of
anne raises a presumption, more or less
tronO according to circumstances, OF
IDENTIFY Wharton says: Identity OF
'o,1e iS not nv itself when the name is
ommon. and when it is borne by several
Green's in the same circle of society, suffi,
ient, TO sustain a conclusion OF identity OF
,arson. The inference, however, rises IN !
frength, if circumstances Indicating the
of there being TWO persons
f the same name at the same
ioce at the same time, and .
,,ben there was no proof that there IS any
+be,. ,,erson bearing the name. Names,
baraf6re with other circumstances, are
nN,+e from which identity can be
80 y In the clse of the
,totes VS.. Ke'soe. supra, tae de- =
andant was indicted for burglary =
dor the name of Charles kelsoe, alias
taSa,tv At the trial he testified in his
yn behalf, and for the purpose OF eHecVlng I
;s credibiIity, the state introduced the
- 70 of fine conviction of Charles KelSOe, I
a.. S6cCer.ty. of grand larceny, and this
Il10 LI,;1T,ad 10 be error; but the court held '
a. :, dantitv of such name was sufficient [
la 80 . presumption ofidentity o1spersons c