The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1901-03-13
QUEER TANGLE
IN GRAHAM CASE
Supreme Court Sets Aside Provo
Mans Conviction.
PLURAL WIFE AT PROVO
MUST BE PROSECUTED WHERE
PLURAL RESIDES.

The supreme court yesterday ruled
that a prosecution for unlawful CO.
habitation must be brought in the
county in which the plural wife re-
sides, and that in cases 10 which the
legal wife resides in one county and
the plural wife IN another county, the
offender cannot be prosecuted in the
county in which the legal wife resides.
AT the same time the court held that
John c. Graham of Provo cannot be
prosecuted in Salt Lake county, al
though the wife with whom he is
charged with cohabiting in this county
is alleged to be his plural wife, but
must be prosecuted in Utah county,
where, il is alleged, the Legal wife re-
sides This decision may seem anon
alOus, but It is not. The court was
guided by the record before it.
Graham's conviction was set aside
Tor the reason that the record showed
that the, Utah county wife was the
plural wife and the Salt Lake county
vile was the legal wife.
The prosecution showed at the trial
of the case that the Provo wife was
married to Graham as q plural, his
first and legal wife then being alive.
subsequently the first wife died and
the plural wife became the legal wife,
but II e death of the first wife was not
shown by the evidence, and, so far as
shown by the record Of the case, the
Provo wife was still q plural.
With reference to the Salt Lake wife,
nothing was shown by the evidedce as
&c Ter status, whether she was legal
Cr q plural wife, and the court ruled
that the presumption OF the law was
that she was the lawful wife. since the
law presumes innocence in the absence
OF evidence of guilt
Thus, guided by the record, the court
held that the legal wife was the plural
wife and the plural wife was the legal
wife, and that the prosecution should
have been brought in Utah county.
History of Case.
The defendant Graham WIS post
master at Provo at the time the case
was called for trial first, but on &C
count of the inability to secure the
service of a subpoena upon the alleged
plural wife. Sarah Potter Graham, a
continuance was ordered till early last
fan. AT the trial then before Judge
NorrelI, County Attorney Putnam pros
ecuting and Charles Mostyn owen ap-
pearing as complainant, Graham was
convicted on the charge OF unlaWIully
cohabiting with Mary A. Graham and
Sarah Potter Graham in Salt Lake
continuously from Jan. 1, 1898, and May
~. 1899.
fenced to pay a fine of $3.50. and an
appeal was taken to the supreme court,
the appellant relying upon an assign
r..ent of errors in instructions to the
jury for a reversal Of the verdict. The
opinion delivered yesterday was writ
ten by District Judge Rolapp ana con-
CURED in by Justices Baskin ana
Bartch. the latter dissenting only from
the process of reasoning. but agreeing
in the result. The opinion orders the
quashing of the information upon
which Graham was tried end convicted.
one of she chief instructions to the
Jury assigned by appellant as reVersn-
BILE error was the instruction to md
defendant guilty If it were found that
ne coha.bited with Sarah Potter era
IN, and at the
same time had a wife in Utah county.
In like manner the appellant excepted
to the instruction which the court re-
fused to give the jury to the effect
. That defendant should be acquitted IL
the evidence showed he had not CO.
babited with both wives in Salt Lake
county.
ofe1se Not Divisible.
The prosecution was waged under
section ASS of the revised statutes
which provides that when an offenSe
is committed partly in one county and
partly in another it may be tried in
either Of the counties, but to this the
opinfon replies that only in cases Of
theft embezzlemeut and other unlaw-
ful taking of property can the rule be
applied. for the reason that they are
"divisfble" offenses. whereas unlawful
cohabitaLO. is not '7divisible' Of
Tense.
Referring again to the vital point. the
opinion Of the supreme court declares
that the jury was bound from the evil
dence in the case to hold the defend
ant innocent of the crime of unlaw-
ful consolidation with Sarah Potter
Graham in Salt Lake county, because
without proof that she was his polyg-
amous wife il is presumed that she is
the lawful wife of the accused. This
declaration is based upon the estaD-
lisned rule that regal acts rather than
crime are To be presumed, and virtue
and morality rather than opposite
Qualities.
feature of the case, the opinion relates
that Graham did not, while at the home
OF his alleged plural wife in Sat Lake
vountv. "fa,lnt ~ the face of the world
the ostentaGOn and opportunities of a
bgamous household
Not a Public offense.
consequently. while defendants as
Sociation and relations y n a lawful
wife in Salt Lake county was a matter
necessary 70 be pleaded and proved by
the state" continues the opinion, yet
such association, act or conduct was
not public pffense nor a part of any
OffenSe. and not being or constituting
an unlawful element of any offense IL
could not be an act or the effects of an
act necessary TO the contamination of
a crime. because no crime is COM
posed il whole or in part of lawful
acts"
The opinion OF the court further OBJ
serves that il is not n -cesSary to prove
sexual intercourse 20 establish the
charge of unlawful cohabitation, 1t be-
ing only necessary TO hold out a SEM
D!ance of marriage to the world, yet
such acts are not TO be construed to
infer guilt.
The case against Brigham II. Rob
erts on a similar charge Of unlawful
cOhabioation was to have been argued
at this term of the supreme court but
since many Of the points involved are
identical IN the Graham case, it was
agreed that the case should go OVeI
until after the ruling Of the court in
the case now decided. The opinion in
The Graham case is not construed as
faNorable 10 the defendant in the Rob.