The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-01-18

point when her claim of exemption
| could be set up. The Miles case (103 u.
8. 304), to which our attention has been
called, does not seem to be applicable.
The inquiries in that case had reference
to the guilt or innocence of the defend
ant therein. 1t was evidence in the case
against him.
BUT SUCH is NOT THU FACT
in the case we are considering. Here
the inquiries could not be used against
the accused, but were merely to ascer-
tain whether she was competent wit
ness to give testimony against him. 1t
is true that in the Miles case the court
said that 1.-The testimony of the second
wife to prove the only controverted
issue in the case namely, the first mar
riage. cannot be given to the jury on
the pretext that its purpose is to estab-
lish her competency" That rule was
laid down under q former Territorial
statute which said: "a husband
shall not be a witness for or against
his wife, nor a wife witness for or
against her husband" Compiled
Laws of Utah 1876, Section 1904
Under that statute the Court in the
Miles case recognized that the wife
was prin1a facie incompetent. The
court said in that case: Witnesses
who are prinlG facie competent, but
whose competency is disputed, are al
lowed to give evidence on their yoir dire
to the court upon some collateral issue
on which their competency depends,
but the testimony of witness who is
prima facte incompetent cannot be given
to the jury upon the very issue in the
case, in order to establish his compe-
tency, and at the same time prove the
ISSUE" Our local statute, then, abso.
lutely disqualified the wife, and the &C
cused could object to her testifying.
But the later act of Congress-the Ed
munds- Tucker act above referred to
has changed this completely. The &C
cused cannot raise any valid objection;
but as to him, she is competent wit
ness. The exemption is wholly a
personal privilege of the witness.
THE EDMUNDs-TUcKER LAW
reads as follows: "Sec. THAT in any
proceeding or examination before
grand jury, a judge, justice, Or United
States commissioner. or a court, in any
prosecution or bigamy, polygamy or
unlawful cohabitation. under any
statute of the United States, the lawful
husband or wife of the person accused
shall be competent witness. and may
bs called, but shall not be compelled to
testify in such proceeding, examination
or prosecution, without the consent OF
the husband or wife, as the case may
be-, " etc. l Comp. Laws of Utah, p.
l14-5. Sec. l. Had this statute been in
existence when the Miles case was de-
cIded, it is evident that the ruling of the
court you'd have been different, as the
first wife as under this latter statute
competent witness.
We see no reason to doubt the au
thority Of the G and Jury to make the
inquiry as to the competency of the
witness when such competency de-
pended waolly upon the proof of fact
That fact the jury had a right to know
in order to ascertain whether the, wltT,
ness was the lawful wife of the accused,
Notwithstanding the general rule that
the competency OF a witness is ques-
ton for the court, 1t is not necessarily
for the court where it depends upon q
fact. The entertainment of that tact
decides the question. The simple
claim of the WllnessE that she was the
lawful wife is not the proof of fact
and is not conclusive. ..-a
We think that the question asked the
petitioner by the Grand Jury was q
proper one, and the District Court had
full authority to require her to answer.
The prayer OF the petitioner for her
discharge is denied, and she is re-
manded to the custody of the Marshal.
FROM JUDGE sANDFoRD.
In addition to the above, Judge Sand
ford read the following:
The petitioner herein claimed to be
the wife of John Hendrickson, and as
such not to be required, or compelled,
! to testify before the Grand Jury against
him. -.-
The Grand Jury had the right to as
certain this primal fact. When this
had been clearly established, then and
not before could the petitioner success
fully insist on her exemptions. The
question, Did Hendrickson marry
Mary Lloyd the same day he married
your" was directed 10 this question of
fact. If it was shown to the Grand
Jury that he had married the same day
another WON an before he married the
petitioner. she was not his legal wife,
q I'D therefore not exempt from testify
ing. When all the iacls had been ad
duced before them, then if there was
still claim to the exemption it was
question for the court to decide
whether. in view Of all the facts, she
was the legal wife OF the accused. If
the question asked had not been con-
nected with the exemption which the
petitioner claimed, a different case
would have been presented.
The Grand Jury may not override
the statute allowing the ex ,mplion,
but they are authorized to ascertain
how much weight and substance there
was to be given to the declaration that
she was the legal wife.
THE SURROUNDING CIRCUMSTANCES %
which 90 to show her legal marriage
were proper and material. The jury
was not to be stopped from the further
examination on this question of eIemp
ton by the assertion that she was lie
gally' married. = ~
1t asincumbent on the petitionerto
show that she was, under the lawaof
Congress, the first wife of the accused,
and the question proposed was suEf-
cient to bring out the priority of her
m tr iage. ,s~- .s:...q =. - s..
Every question which tended to es-
tablish her right to an exemption was
proper.