The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-06-12
HE MUST STAY IN.
Peter BartOn's Application for
a Heabeas Corpus Denied.
ALL FOUR JUDGES ARE AGREED.
The Civil Calendar in the Third District
The Settings Made - Probate and
Other Legal Business.


court in the matter of the application OF
Peter Barton for writ of habeas corpus.
The opinion was concurred in by the other
Judges, and is given in full below:
The case as stated in the petition is, that the
petitioner was, on the 18th day of April lehS
twice indicted by the grand jury OF the Ihrd
district court; that both indictments were found
and presented at the same tlme that the names
endorsed on each as witnesses were the same;
that one charged him with the crime of adultery,
alleged to have been committed with one Mary
Beesley; that the other charged him with the
crime q unlawful cohabitauon, alleged TO nave
been committed by living with Mary Barton ana
MARY BeeSley as his wives; that the indictment
for adultery alleged the crime TO have been com
mitted within the period OF time covered by the
indictment for unlawful cohabitation; that on
the 9Th day of February, 1899, the petitioner was
arraigned before the court on the charge OF I'M
lawful cohabitation and pleaded guilty; That
thereupon the court suspended sentence upon
charge: that Immediately thereafter he was ar
raigned upon the charge of adultery and
plead guilty, and thereupon he was sentenced
Nv the court 10 Imprisonment for the term OF
fifteen months upon that charge, and that he is
now imprisoned in the peDitentlary thereon.
The petitioner AYERS that the Mary Beesley
named in the two indictments Is one and the
same person The petitioner alleges that
THE IMPRISONMENT IS ILLEGAL AND vOID1E
in this, that the court had no jurisdiction TO
pass Judgment against your petitioner on the
Indictment for adultery, for the reason that the
ofense charged is the same as that contained
and set out in the action, indictment ana RECORDS
for unlawful cohabitation; that the prosecution
and conviction for unlawful cOhabltaton barred
any further prosecution or proceedings and
that the court had no jurisdiction or power TO
take any action upon the indictment IOr
adultery'' The petition concludes with a
PRAYER that a writ OF habeaS corpus issue 10 the
end that he may be discharged from lmprlson-
The district attorney has appeared upon this
application, and denies the petitioners right TO
the writ.
Hi WIN readily be seen from the foregoing
STAT ement that the petitioner was regularly in
dIcIed convicted and sentenced, for the crime
of adultery, and that there is no ilIegalty APP
bearing upon the record thereof; but that the
petitioner is seeking TO impeach or destroy this
record by alleging and Showing the existence OF
another MADE in another case and which IS en-
tirely separate and distinct; ana which II the
facts set out IN his petition are true, might have
constituted q good defense to the charge of
adultery if interposed by plea of former conT!c-
ton in the trial court: and the question pre-
scented 10 us IS whether the defense OF a former
conviction upon a prior prosecution can be made
available for the first time on an application for
a writ of habeas corpus in this court after con
yction on plea of guilty, without pleading it, or
in any way calling il to the attention of the trial
THE CODE OF CRIMINAL PROCEDURE
Of this territory provides as follows:
Sec. 20I.-There are four kinds ofpleas TO an
indictment. plea of
"I-Guilty.
Mot guilty
"a former judgment OF conviction or ac-
uuittal OF the offense charged which may be
pleaded either with or without the plea OF not
guilty.
"4EOnce in jeopardy"
Sec. 2G2 prescrlbes the form of each Of these
Sec. 9O5-AI matters of fact tending to estab-
fish defense other than that SpeciEed IN the
third subdivision of section 2Ol may be given in
evidence under the plea OF not guilty.
Sec, 2l6-An issue OF fact arises:
Upon plea OF not guilty.
.'2-Upon a plea Of former conviction or acQuit-
tai of the same Cffe Se.
'3-Upon plea Of once in jeopardy
Sec. 2i,-lssueS Of fact must be tried by Jury,
unless trial by Jury be waived IN criminal cases
not amounting TO felony, by the consent OF both
parties expressed il open court Gnd entered in
It's minutes.-2 Compiled laws, loo1, PIP. 90, 69S
and 700.
These provisions substantially follow the com
mon law. The plan of former conviction raises
an issue of fact ana is fer trial by jury Il Arch
ioald's criminal Pl. and Pr. 34S Note.)
The petition relies upon the cases OF eX Iarte
Snow 10 u. S, pa anu eX parte Nielsen, lately
decided by the supreme court of the Unite
States in the Nielsen case. Nielsen had been
convicted OF unlawful cohabitatlon and sen
fenced TO the penltentlary. Alter MS term OF
Imprisonment mad expired he was again prose
cuted upon d charge OF adultery alleged to
have been committed within the period covered
by the charge of unlawful cohaoitation, and
with one of the same women with whom he was
charged to have unawtully cOhaOlted. To the
charge of adultery ne pleaded the former CON
Viction setting up the record fully, ana aVerrlng
the identity OF the Two charges. To this plea the
government demurred. The demurrer was Sus-
tanned by the court, and he was put upon trial
on his plea OF not guilty, before the
Jury, ana was convicted and sentenced.
The supreme court Of the United States held
that the charge OF adultery was included in the
charge of unlawful cOhabltatiOn, and that the
demurrer to his plea OF former conviction was
improperly sustained and that he should be dis
charged. His former conviction was part OF
the record OF his conviction for adultery. He
had pleaded il. The demurrer to his plea
ADMITTED ITS TRUTH
the same as though it had been found by the
verdict Of a jury. A fact had thus been estab-
lished which cleared him of the charge, and the
court had no jurisdiction to proceed further
But, nevertheless, he was put upon trial of
his plea of not guilty. and convicted and sen
fenced All this appeared in the record OF his
conviction. In the Snow case, supra, the record
was the same.
The petitioner claimed that the court had no
Jurisdiction over the oifense Of adultery charged
against him because, as he AYERS, he had been
convicted OF the same identical Oi1enSe before;
and he cites the constitution of the United
States to the effect that person shall be twice
put in jeopardy. The courts, however, are the
properly constituted tribunals to determine the
question as TO whether party has once been in
jeopardy, and the district court in which the pc
titioner was convicted had jurisdiction to deter
mine that question. II is equally clear that
courts have no jurisdiction to impriSon person
u
have jurisdiction to determine the fact as TO
whether the crime has been committed, and TO
proceed with the inquiry until IL Is determined.
If il is found that no crime has been committed
the Jurisdiction of the court ceases; but If il has
been, then the court has jurisdiction to inf ct
the punishment Church on habeas corpus, sec
tons 22} 33G: eX parte Bogant Sawyer $50
WHEN A PERSON Is CHARGED WITH A CRIME
before court having jurisdiction to determine
his guilt er innocence and he claims immunity
by reason OF a former conviction or acQuittal,
the burden is upon him TO plead II in answer 10
the charge, and to establish it by his evidence;
and If he does not do so il is waived. Bishops
Criminal Procedure sec. 500 WhartOEs Grim
inal Law, sec. jsS ct seq: eX parte kaufman, -
Mo, 5SS; ex parte Bogart, = Sawyer, $50; State
VS.. Webb, "A Mo, 333
The question OF q former conviction was
matter of defense, and was 4 question for Jne Ge-
termination of the court having jurisdiction 10
try the charge. 1t involves question OF fact
the identity OF the ofienses charged, the exist
ence and priority of the record relied up0n-and
on habeaS corpus this court cannot try such an
issue. Ex parte Bogart, supra; State vs.. webb
suDra: Church on habeaS corpus, sec. }j0.
II is also claimed that the judgment was void
because it was passed in less than six hours af-
ter the plea Of guilty was entered, and was
therefore in violation Of the statute. The copy
of the record attached TO the petition shows that
the petitioner was arraigned and pleaded
guilty. land requests that sentence be not
PASSED upon him" Ga the same day sentence
was imposed. The plea ana sentence are sep
arate entries on the journal. II is claimed that
this shows that less than six hours interviewed
between the plea and sentence. We do not
think this is necessary inference. but IL il was
it would be but mere irregularity which could
habeas corpus, 33l ct sea-; eX parte Smith,
New BIS