The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-06-07
THE BARTON CASE.
The Habeas Corpus Argued and
Taken Under Amusement.
POWERS WANTS A REHEARING
In the Herald Libel Case-Thirty More Aliens
Go Through the Mill-POlice and
Probate Cuttings.

When tie supreme court opened yester
day at the ''unhOly hour" as one OF The
LAWYERS termed it, of o'clock, judges
Zane. Anderson and Henderson occupied
the bench, Judge Judd having other mat
tiers to engage his atteution-probably the
writing of the opinion in the case Of the
apple ion of the Hawaiians for citizenship
The first matter to receive attention was
the application OF Peter Barton for writ
of habeas corpus. The applicant was rep
resented by Judge Powers, and the gov
eminent by Messrs. Peters and Hiles. In
his opening argument Judge Powers stated
the nature OF the case. The principal
points in his brief were as follows:
In this case the petitioner was indicted on the
same day by the same grand jury upon the les
timony Of the same witnesses and upon the same
oaths, for the crime OF unlawful cohaDlLallol
and the crime of adultery with the same woman
The indictment for unlawful cohabltaton al
legeS the commission Of the crime on the LIST day
OF May, 1885, and the I'd day OF March, 1881. Inc
part!e; with whom he as alleged to have co
nauited were E.uen Barton and Mary Beesley
heindictment for adultery charges mat on the
4th Gay of May 1887, the defendant, being the
lawful husband of Ellen Barton, com
rnitted the crime Of adultery with Mary
Beeslsy The indictments were both filed
in this court on the 18th day of April, 1883. On
the 6Jn day or February 1889, the defendant was
arTaigned for unlawful cohabitauon, pleaded
guilty. and requested sentence. Immediately
after, and on the same day, the defendant was
arraigned upon the Indictment charging MIN
with adultery, 10 which he pleaded guilty, ana
was sentenced to fifteen months Imprisonment
in the penltentlary.
With exceptions hereinafter noted, this case
is upon all fours with the Nielsen case
lately decided by the supreme court OF the
United States. Nielsen was convicted by jury
of cohabitation. The indictment charged that
the cohabitation began on the 18TH day orOcto
Der 1885 and continued until the 18th day OF
Nav 1855 The same grand jury indicted him
for adultery, charging the COMMISSION oil the
crime with one OF the plural wives named in the
indictment for unlawful cohaDltatlOn on the l4th
day of Nav, 1888 These two indictments were
found At the same time, ana in this the case Is
identical with the one at bar. Nielsen was tined
convicted and sentenced for unlawful cohablta
ton. At the expiration of his sentence he was
brought to trial upon the indictment for Sdul
tery He interposed the plea of former convlc
ton because the alleged adultery was part OF
the offence of unlawful cohaoltaton' Tor whlch
he had suffered the penalty of the law and salts
tied the Judgment of the court. The
plea was demurred TO and the demurrer SuS-
tanned Nielsen was convicted and again
sentenced to the penitentiary. He then sued oul
awrit of habeaS corpus, and the supreme court
of the United States decided that he was en-
titled 10 the writ the obvious ground Of the de
ciSion being that the second term OF lmprson
Yiction.
The only distinction between the Nielsen case
and the one AT bar, arises from the fact thai
Nielsen served a term for unlawful cohdDltallOI
aud vixen brought to trial upon charge of adul
tery pleaded the former conviction and ludg
ment in law while in the case Of this petitioner
he was convicted OF unlawful cOhabitatlon, by
his plea of guilty. requested sentence which was
suspended. interposed no objection, when he
was arraigned for the crime OF adultery, pleaded
guilty and was convicted upon that charge.
oil Hot Ia
the courts, that unlawful cohabitatlon consists
of series of acts which all combined convince
the Jury that the man Is living polygamouSly.
The act of sexual intercourse Is not an essential
element of the offense; it may or may not exist,
hut when il does exist II Is a part OF the crime
of unlawful cOhsbitation, as much as the con,
sorting alidliYing together, or the holding out OF
two or more women rs ms wives. ms Il
the decision OF the supreme court OF the
United States In the Nielsen case. I'm
lawful cOhabltation is 4 continuous onense
there is but Il single ofiense committed prior to
the time when the indictment was found. The
decision of the supreme court OF the United
States clearly decides the points discussed N
favor Of the petitioner. Barton having peer
convicted by his plea Of guilty or the crime OF
unlawful cohabitation, the court had nc
authority TO proceed Il single step with the In
dictment for adultery.
Mr. Hiles followed but he was entirely toe
deep for the reporters, who failed TO catch mosi
of his points made. He said that action OF the
court was a mere irregularity, and could not DC
received on hapeaS corpus. II Barton nae
pleaded former conviction, he might nave
awaited himself of the writ he asks Tor but ht
did not. He never gave the court below an op
portunity TO pass upon the question OF his formel
conviction In the record OF this particular cast
there was no showing of a former conviction
and it could not be shown by means OF the VIII
asked for.
Judge Powers, in his closing remarks said
that the supreme court of the United States
mad said unlawful cohabitation was continuous
10 the date of the finding Of the indictment, anC
a second indictment within that penod wa
illegal. and writ OF habeaS corpus would re
lease a person held by the second indictment
There was no effort to contradict the record. bu'
the record itself is relied upon and shows th'
ilegality of the proceedings III the adultery case
The United States supreme court hau sara ina
these onenseS could not be seq ,egated III any
way vet the district attorney dld this, ana stu
persisted in his course by holding man IN lie
gal confinement, ana ende2HorlnB 10 nLalliI, d.,
himself by mere bubbles. This man, VINO ap
plies for release, Is being unlawiully heIu
and to deny him the plain justice u
which he was entitled was course Una
the court could not follow. II had not beei
necessary to prove a former conviction: the Law
said he could not be convicted: therefore the en-
tire Judgment was void, and upon habeaS corpu
proceedings must be released. Tine district AZ
fornev here admits that this man is unlawful!
imprisoned, yet by bubbles he still continues Il
deprive a citizen OF his constitutional rights
The court in arraigning Barton on the Secont
charge was acting Will o IL authority, ara III
Judgment of fifteen months Imprisonment wa
void II cannot be that we have yet reached
point in America when we will keep men II
prison on a mere technically. There are nall
dozen cases dependent on this; they are unlaW
fully held and we come here asking the court t
give us Justice. 1 ask your honors to well con
slider the case OF holding a man on VOID ludg
ment Your honorS will have to consider II
There is no lodging the issue. We must know
whether this man can be held in prison In WOLF
lion OF the law and the constitution.
The case was submitted and taken unde
Amusement.