Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-12-31

Every bigot who would confne
participation in such . movement
70 one class Of the community, or
divide good citizens in storming the
.tron ,holds Of vice, Is . roe to the
commonwealth.
AN IMPORTANT DECISION.
| Ruling Of the Utah Courts
RoYefs.d.
Full Text Of the Opinioa Of HE
o. s. Supreme Court.
SUPREME COURT OF THE UNITED
No. 1l0.-OctOber Term, 1880.
William E. Basse.t Plaintiff in
Error, vs.. the United States. IN
error to the supreme Court Of the
Territory OF Utah.
December ., 1901
Mr.. Justin Brewer deliv cred the
opinion Of the Court.
On November %. 1856, the grand
Jury of the First Judistil District
Court Of Utah found AN indictment
for polygamy against the platinum
in errvr, charging him with having
married one X ,te Smith on the 9Th
day Of August, 1854, when his law
full wife, Sarah Ann Williams. was
still living and undivorced. Upon
trial before q jury verdict OF guilty
was returned, and he was sentenced
to Imprisonment for term OF nve
years and to pay a fine OF nve
hundred dollars. Such sentence,
on appeal, was affirmed by the
Supreme Court Of the Territory,
and is now brought to this court for
review.
A preliminary question Is pre-.
sented by the Attorney General. II
Is urged that there was no proper
hill OF exceptions as 10 the proceed.
ings. in the trial c,urt, and therefore
nothing Is presented which this
court can review. But We are re-
viewing the judgment Of the
supreme Court 1.-THE Territory; and
the rule In this court is not to con-
slider questions other than those of
jurisdiction, which were not pre-
sented to the court whose Judgment
We are asked to examine. lClark v.
Fredericks, los U. 5. ~ Beyond
the fact that the proceedings OF the
trial court were examined and con-
sidered by the Supreme Court ofthe
Territory, and are, therefore, pre-
sumably RENEWABLE by this court,
is this matter. noticed in this court
Ia the case Of Hopt v. Utah, (l1i U.
5. 49, that q large liberty Of re-
view Is given by the statutes Of
Utah to the Supreme Court Of the
Territory, even In the absence Ut q
formal bill Of exceptions. (See also
Stringfellow v. Cain. 90 U. 8. 61o;
ORsiily V. Campbell, 1l6 U. s.
llS.)
But 1t is unnecessary 10 rest upon
this recognition by the Supreme
Court ofthe Territory, or the pre-
sumptions arising therefrom. The
record shows the pleadings, pro-
es-edings. and exceptions In the
charge Of the trial judge, all certified
properly ry I. A. rerkins, the clerk
ofthe trial court. At the close Of
his certificate. which lie Of date of
January 81, 1857, Is this statement:
"And l further certify that a copy
OF defendants bill Of exceptions in
said cause is not made part hereof
because said bill of exceptions Is in
the possession OF defendants coun-
sci, at the City Of Salt Lake, and be-
cause / am informed by ssaid
counsel that it has been stipulated
by and between themselves and the
United States district attorney for
Utah Territory that the original
thereof in place Of such copy should
be used in the Supreme Court upou
this appeal" The bill Of excepsions
referred to by him in this statement
is signed by the trial Judge and
thus endorsed: "No. 934. First
Dist. Court. Utah. The United
States vs.. William E. Baseett.
Polygamy. Bill Of exceptions.
Filed January 10, 1887. +. A.
Perkins, Clerk" and also by the
clerk Of the Supreme Court Of the
Territory as "Filed February 9,
1887" the date Of filing Of the
transcript Of the proceedings Of the
trial court. The import OF all this
Is that the bill Of exceptions signed
oy the trial judge was fled in the
trial court; and that, for the pur.
poses VI economy, time and con-
such original till, to ether
with the record Of the proceed.
iDgs. was brought to and file.i in
the Supreme Court after having been
filed In the trial court. 1t needs but
this suggestion, that II q copy Ii good
The original Is equally cool. The
Identification Of such bill Of excep-
tolls is perfect, vouched by the
sig natures Of the trial Judge, the
clerk Of the District Court, and the
clerk ofthe Supreme Court. To IL.
more such Authorization would
pl zee this court in the attitude Of
n sting on a mere technicality 70
! void an inquiry into the suhstsn-
~! rights OF q party, As considered
md determined by both the trial
court and the Supreme Court of the
Territory. In the absence Of q
or special rule OF law com.
peuing such a practice, we decline
to adopt it.
Passing from this question OF prac-
Efce to the merits, the principal
question, aud the only one we deem
to consider, Is this: The
wife Of the defendant was called rs
; witness fer the prosecution, and
permitted TO testify rs to confessions
made by him to her In respect to the
crime charged, and her testimony
sas the only direct evidence against |
him. This testimony was admitted
luder the first paragraph of section
ll56 Of the Code Of Civil Procedure,
enacted In 1854, sction 3S7S Of the |
Complied laws Of Utah, 1858, which |
leads: "a husband cannot be ex.
for or against his wife.
Without her consent, nor wife for |
" against her husband, without his
nor can either, during the
or Afterwards, be, without
he consent Of the other, examined
Is 10 any Communication made by
ne TO the other during the marriage; |
mt this exception does not apply ~
civil action or proceeding by one
Igainst the other, nor to . criminal
elton or proceeding for q crime
by one against the
ther." And the contention is,
hat polygamy 10 within the Ian
'uage Of that paragraph u crime
by the husband against |
4