United States v. Tenney , 2 Ariz. 29 ( 1885 )

FITZGERALD, J.

These three cases having been tried before the Third judicial district court, at Prescott, Chief Justice Howard, who presided at the trials, submitted the questions involved in the record on appeal to Judges Pinney and Fitzgerald. The facts involved in the three cases being similar, the questions of law in each case identical, (with the exception of the question of the admissibility of evidence of general reputation to prove the marriage relation, which question arose only in the Ouse of Tenney, no evidence of general reputation having been offered in the other cases,) by stipulation of parties the three cases were argued and submitted together.

The defendants were each convicted of the crime of polygamy, as charged in the first count of the respective indictments. Motion for a new trial was made in each case, and denied. The defendants were each sentenced to imprisonment in the Detroit house of correction for the period.of three years and six months, and to pay a fine to the United States of $500. From the order overruling the motion for a new trial, and from the final judgment, the appeal is taken to this court.

The first assignment of error refers to the overruling of the demurrer to the first count of the indictment, on the ground that the facts alleged constituted two distinct causes of action. The first count, it is true, contains more than was necessary to properly charge the crime of polygamy, but the objectionable words, referring only to cohabitation after properly alleging the polygamous marriage, were clearly surplusage, and could not have misled or worked injury to the defendant. The first count charges the crime substantially in the language of the statute creating and defining the offense. The incorporating into the first count words in excess of what was absolutely necessary to charge the offense, not materially affecting, rendering doubtful, and by no possibility expanding, the offense charged, are but surplusage. It was clearly the intention of the pleader to charge the statutory offense of polygamy in the first and second counts of the indictment, and the offense of unlawful cohabitation by the third count. To say that the expansion of the first count, by the addition of language reciting cohabitation after charging polygamy, and as following the polygamous marriage, could have misled or resulted injuriously to defendant is untenable. People v. Cronin, 34 Cal. 191; People v. Murray, 67 Cal. 103, 7 Pac. 176; Lodano v. State, 25 Ala. 64; United States v. Simmons, 96 U. S. 360; 1 Bish. Crim. Proc. 193, 274, 277, 360, 371. We are of the opinion that the ruling of the court below on the demurrer to the first count in the indictment was correct.

The second assignment refers to the ruling of the court in the Tenney Case, the question not arising in the other cases submitted, in allowing the witnesss Hubbell and Barth to testify to the general reputation, in the community where they lived, as to the relation of husband and wife existing between defendant Tenney and his wives. The jury were distinctly charged that the evidence of general reputation, standing alone, would amount to nothing in such a ease; that it was only an incident and circumstance to be considered in connection with all the other proof and circumstances, there being no positive proof of an actual marriage ceremony, to enable the jury to find and determine either the main fact charged, the polygamous marriage, or the unlawful cohabitation. The doubt surrounding the admissibility of this character of evidence is removed by a reference to the territorial statute, to' which it appears the trial court resorted, in the absence of a congressional enactment or regulation on the subject. Section 123, e. 10, Comp. Laws, provides:

“It shall not be necessary to prove either marriage by the register or certificate thereof, or other record evidence; hut the same may he proved hy such evidence as is admissible to prove a marriage in other cases.”

That reputation is competent in “other cases” there can be no doubt. 1 Bish. Mar. & Biv 438, 439; 2 Greenl. 461, 462. If there was doubt as to the propriety of resorting to this character of evidence in a criminal ease, in view of the statute above cited, and the charge of the court as to the proper application of that class of evidence that it was but secondary and circumstantial,—not sufficient in itself to warrant the finding of the polygamous marriage or cohabitation,—we are of the opinion that the defendant has no ground to complain of its admission. Considering the silence of the United States statute, with the fact that the territorial act above referred to provides for this kind of proof in such cases, notwithstanding the claim made by appellants that the territorial practice act cannot be applied to proceedings for violations of congressional laws, the court seems to have been warranted in the resort to this class of evidence; especially when its weight and sufficiency was carefully guarded, as in this case. In view of the very positive charge of the court that the jury must find, in order to convict the defendant, the marriage to have been contracted and entered into within the Third judicial district of Arizona, and since the passage of the act of congress referred to, (March 22, 1882,) the correctness of the ruling in admitting the evidence as corroborative only, as the court directed, is beyond dispute.

The fourth assignment refers to the testimony admitted by the court as to facts occurring without the jurisdiction of the court more than three years before the finding and presentation of the indictment. A sufficient answer to this objection is found in the fact that the record shows the defense to have “opened the door,” and by the introduction of evidence as to what had occurred in Utah and other places before the time when it was by the indictment alleged that the defendants committed the crime of polygamy in Arizona, fully justified the court in allowing the prosecution to follow the defense over the wide range it had covered by its questions to the witness.

We are of the opinion, however, that the evidence, when confined, as it was by the charge of the court, to an interpretation of the character of the relation existing between the defendant and his two wives; and guarded as it was by the emphatic charge of the court as to the duty of the jury in finding the polygamous marriage within the district, and within the time alleged in the indictment,—could have done no injury to the defendant. And in view of the fact that the defendant first introduced, by repeated questions to plaintiff’s witnesses, this evidence to which he now objects, we hold that he should not now be heard to except to it. A party who shrinks from an exposure of his ancient peccadilloes ought not to put them in evidence; having done so, he cannot be heard to complain that the court allowed the other party to follow in his lead.

The fourth and fifth assignments are practically covered by the consideration of the last, except that portion of the fifth which refers to the use of the census returns by the witness Ruiz to refresh his recollection in regard to the facts appearing upon the face of the returns. The witness Ruiz was the census enumerator for Apache county. The census return filed in the office of the secretary of the territory is by the statute made an “official document,” and evidence of its contents. The witness Ruiz, who took the census, was permitted to examine and refer to the returns thus filed by him with the secretary, to refresh his memory. In addition to which the witness stated that from his own recollection, irrespective of the official return, he was able to state what the accused gave him as the names and number of the members of his family at the time he took the census. Taking the statement of the witness, the official and authenticated character of the document referred to, we can conceive of no more correct method of proving the facts shown by the census return than was allowed in this case.

The sixth assignment is fully answered by the consideration of the fourth and fifth.

The remaining assignments of error upon which the appeals in these cases are based refer to the charge of the court. We might dispose of the question raised by these assignments by the simple statement that the exceptions to the charge of the court are general, not specific; and do not, to any extent, designate the particular charge, part of charge, modification of request, or refusal to charge, to which defendant takes exception, or which he here incorporates into the record as the basis of the allegation of the erroneous charge of the trial court. We prefer, however, to consider the charge upon its merits, as a correct exposition of the law applicable to the case. We enunciate as the correct principle, in the consideration of the charge of the court, that the whole and entire charge should be considered together; that a dissection and presentation of isolated, fragmentary portions of the charge, so separated and divided as to pervert the meaning and sense which would naturally follow a consideration of the whole, is not the legal or fair presentation to the appellate tribunal of the charge and instructions of the trial court. The charge should he considered as a whole. The argument on appeal in these cases appears to have proceeded upon the erroneous impression on the part' of appellants that while the indictment was found under the United States statute known as the “Edmunds Law,” the trial and proceedings subsequent to arraignment were had under and pursuant to the territorial statute and practice. A reference to the record will show the fallacy of this claim, which is more than insinuated in the brief and argument of appellants. The trial court held that in a court with jurisdiction over offenses for violation of an act of congress, where the United States statutes were silent as to matters of practice, method of proof and procedure, the territorial statute might be invoked and applied to the case. Thus the United States statute being silent as to what shall constitute a marriage, as well as the method of proving marriage, the statute of the territory prescribing what shall be necessary to constitute a marriage, as well as the territorial law providing the manner of proving marriage, could be properly resorted to and applied. In this we think the trial court was clearly correct.

Congress has legislated for the punishment of the violation and -prostitution of the marriage relation. It has .not defined marriage. It has not formulated or provided any method or prescribed the character of proof in such cases. The alleged offense was committed, as the jury under the charge of the court below must of necessity have found, within the limits of the Third judicial district of the territory of Arizona, and within the time fixed as the limitation by the .so-called “Edmunds Anti-Polygamy Law.” To apply the existing territorial law defining marriage and prescribing the method of its proof, in our opinion was clearly within the rule recognized in all cases where congressional laws are sought to be enforced by courts possessing jurisdiction of United States eases in the territories. The assumption and assertion that the appellant was indicted under the law of congress, and tried under and by the rule of the territorial law, is not warranted by the facts disclosed by the record. The resort by the court to the territorial legislative definition of marriage, and the method of its proof, suggests itself to us as not only proper, but the only course to pursue in the absence of congressional statute. Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Wall. 652; Miles v. United States, 103 U. S. 315; section 914, Rev. St. U. S.; Reynolds v. United States, 98 U. S. 145. The laws of the United States being silent on the subject, section 123, Comp. Laws Ariz/ 1877, is the rule of decision in this case, and becomes applicable on the trial. Comp. Laws, § 21, p. 397; Comp. Laws, § 7, p. 571. The particular portion of the proceeding in the court below at which this objection is aimed by the seventh assignment of error is included in that part of the charge wherein the court read from the territorial statute, and commented as follows:

“This rule prevails, that where, in matters of practice, the statute laws of the United States are silent, in the territory or state where United States courts are held for the trial of causes under the United States statutes, the local statutes may be invoked for the purpose of interpreting the law governing the practice and conducting the proceedings of the court.”

By a subsequent portion of the charge it is apparent, and the jury was so charged, that the interpretation referred to applied only to the constituent elements of a marriage contract, and to the method of its proof. This portion of the charge was confined to a reading of the statute, (section 1891, Comp. Laws Ariz.,) as follows:

“Sec. 1891. Marriage is considered in law as a civil contract to which the consent of the parties is essential.”

As to the manner of proving polygamous marriages, the court referred to a portion of section 123, c. 10, Comp. Laws, which reads as follows:

“It shall not be necessary to prove either of said marriages by the register or certificate thereof, or other record evidence, but the same may be proved by such evidence as ■is admissible in other cases; and when such second marriage shall have, taken place without this territory, cohabitation in this territory after said second marriage shall be deemed the commission of the crime of bigamy.”

It is clear that, in the absence of this statute, a charge to the jury instructing them as to the character of evidence to prove a marriage embodying the essential points covered by this statute would have been correct. It is beyond dispute that this reference to the statute is unobjectionable, when taken in connection with the other portions of the charge by which the jury were distinctly instructed that they must be satisfied that the first marriage existed; that the second marriage was contracted within the territory, and within the time fixed by the United States defining and punishing polygamy.

Upon a careful examination of the whole record, including the charge of the court in the three cases, we are satisfied that the defendants had fair and impai’tial trials. It is due the trial court to state that no precedents existed in this territory by which it might be guided in cases under the so-called “Edmunds Act.” We fail to find in the record any material error. For these reasons the court is of the opinion that the motion .for a new trial was properly overruled, and that the judgment was correct.

PINNEY, J.

The facts in these eases are conceded to be about the same in each case. The record in the Tenney Case is the only one brought up. Six witnesses were called and sworn on behalf of the government. The defendant introduced no proof in his own behalf. The question is, do the facts as testified to make a case in the law? The evidence, as given by the different witnesses, is nearly the same, and consists mainly in admissions made from time to time by the defendant. Tenney, the proofs show, lived with two women in the same house, and by them had several children which were admitted by the defendant to be his children. The women were known as Mrs. Anna Tenney and Mrs. Eliza Tenney. At the store of Mr. Barth, the defendant gave orders to let his two wives, Anna and Eliza, have goods, which was done at different times, and paid for by him. Mr. Traner, the clerk at the store, testified :

“He has acknowledged to me that these two women were his wives; that it was better to have two wives than be running around after other women.”

Mr. Barth testifies:

“He always gave us orders to let the women and children have what they wanted when they came to the store, and charge it to him. He paid the account. The general reputation is that these two women are defendant’s wives. At the windmill, three or four years ago, first one came in, (Anna.) and he said, ‘This is my wife;’ and then when Eliza came in, he said, ‘This is my other wife.’ ”

And to all of the witnesses the defendant has, at different times and places, stated that both these women were his wives. In Miles v. United States, 103 U. S. 304, the defendant was indicted for bigamy. The indictment charged that “Miles did, on the twenty-fourth day of October, 1878, at Salt Lake county, in the territory of Utah, marry one Emily Spencer, and that afterwards, and on the same day, and at the same county, did marry one Catherine Owens.” On the trial of that ease certain declarations and admissions made by the defendant concerning his marriage were admitted in evidence. What those admissions were does not appear, but concerning them the Supreme court says:

“The declarations of plaintiff in error touching his marriage with Emily Spencer, admitted in evidence against him, appear to have been deliberately made, and under such circumstances as tended to show that they had reference to a formal marriage contract between him and her. We are of the opinion that the district court committed no error in admitting such declarations.”

Counsel for defendant insists that the record in this case discloses no admissions by Tenney of any “formal marriage contract” with either Anna or Eliza, and no admission of any marriage contract at all, or marriage ceremony at all. It will not be denied but that the admissions and confessions of a defendant in a polygamy or bigamy case can be used and go to the jury for what they are worth. It is conceded by the able counsel in his argument in this case that if the admissions were precise declarations describing a time, a place, and a ceremony, that this would then become evidence of that ceremony. At the same time counsel insists that mere statements by defendant that these two women were his wives utterly fails to make such a case as the law requires in actions of this character. I am not unmindful of the fact that confessions of marriage are sometimes made to justify the conduct and screen the party who happens to' be living in open adultery. A confession may also be -made of a supposed marriage when the party is ignorant of the law, and may honestly suppose a marriage to have taken place, when in fact no lawful marriage ever took place; and hence some cases may be found where the courts refuse to hold a marriage proven upon the unsupported admissions of the defendant. Bach case must necessarily depend upon the particular circumstances surrounding it. An admission, deliberately made, “This is my wife,” means something. Webster defines “wife” to be: “The lawful consort of a man; a woman who is united in the lawful bonds of wedlock.” Why should not an admission of this character be entitled to as much weight as the testimony of one who saw the marriage ceremony performed, or to as much weight as the admissions of a party which tended to show they had reference to a formal marriage contract? It seems to me that if a man deliberately admits that the woman he lives with is his wife, that this is at least prima facie evidence that there had been a marriage contract between'the parties. And when we add to this the fact that the parties had lived together as husband and wife for a long time, raised children, and held themselves out to the world as husband and wife, this ought to be pretty good proof of marriage, and all this appears in evidence.

The importance of these cases has caused me to add this much to what has been written by my associate. The orders and judgment of the court below are affirmed.