United States v. Groesbeck , 4 Utah 487 ( 1886 )

Zane, C. J.:

The defendant was tried in the first district court on an indictment containing two counts, and convicted and sentenced to imprisonment and to pay a fine on each. From that judgment he has appealed to this court. The first count charges the defendant with unlawful cohabitation between the first day of January, 1884, and the thirteenth day of June, of the same year, with the three women named. And the second is for unlawful cohabitation with the same women between the last date above named and the thirty-first day of the following December. To both of these counts the defendant pleaded not guilty, and, before the jury was impaneled, moved the court to rule the prosecuting attorney to elect one count, and to go to trial upon that. The court overruled the motion; the defendant excepted, and now assigns that ruling as error.

The appellant, by his counsel, insists that cohabitation for the entire time of both periods constituted but one offense; that the grand jury had no legal right to divide the time, and charge two offenses. The crime, of unlawful cohabitation consists in living or associating with more than one woman as their husband, apparently in the marriage relation — under the semblance thereof. The claim of the appellant’s counsel rests upon the idea that the beginning and the continuation of the association are essential to the offense; that the mere continuance of the show of marriage is not sufficient. If a man should live with more than one woman as their husband during three years, it is claimed that in so doing he would commit but one offense. It is admitted, however, that if he were to cease to cohabit at the end of the first of the three years, and again live with them as their husband during the last of the three, he would thereby commit two crimes. Assuming the law as claimed, tbe mail who cohabits three years commits one crime, and is subject to one punishment only, while he who cohabits two years commits two crimes, and is subject to two punishments. According to this, the greater the cohabitation the less the punishment; the less the cohabitation the greater the punishment. The punishment is to the cohabitation in an inverse ratio.

Such a view furnishes no inducement to a man in polygamy, or in the practice of unlawful cohabitation, to reform. The language of the statute is: “If any male person * * * cohabits with more than one woman, he shall be deemed guilty,” etc. The formation of polygamous relations, commencing to live with two or more women as wives is not indispensable to the crime. Such relations may have been formed. The unlawful association may have commenced long before the laws defining the crime took effect, as in the case of U. S. v. Cannon, ante p. 122 affirmed by the supreme court of the United States, 116 U. S., 55. Cases may be cited holding that the same grand jury can indict but for one offense where the crime may be a continuing one. In some of these a portion of the time of each of two counts of the indictment was covered by both. In others it appeared that the prosecuting witness was attempting to use the court to gratify his malice, or, for pecuniary gain, harassing and oppressing the defendant with a multiplicity of prosecutions and accumulated costs and fines. In other cases, the legislature, in describing the crime, had indicated an intention to include the acts constituting the inception of the offense as an essential element to it. The point under discussion was decided adversely to the appellant’s views in the case of U. S. v. Snow, ante p. 295. To the same effect are the cases Com. v. Connors, 116 Mass., 35; Morey v. Com., 108 Mass., 433.

It is also insisted that it was unjust and oppressive, and greatly to the disadvantage of the defendant, to put him upon trial on both counts before the same jury; that in considering the question of his guilt upon one they would be influenced by the evidence rinder the other. But the courts have held that in a trial on a single charge evidence tending to prove tlie defendant’s relations to the women before and after the time mentioned in the indictment should go to the jury, to be considered with the evidence for and against him between the dates named, for the purpose of aiding them in determining the character of his association between the dates; that it is proper for the jury to know his feelings, disposition and habits towards them before and after the time of the offense, as well as during the time; that such facts shed light upon the conduct complained of; so that defendant was placed at no disadvantage by being tried on both charges before the same jury.

The court sentenced the defendant to distinct punishments on each count. To this the appellant objected and excepted, and now assigns the same as error. The respondent relies on section 1024, Rev. St. U. S.: “When there are several charges against any person for the same act or transaction, or. for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and, if two or more indictments are found in such case, the court may order them to be consolidated.” This section provides that when two or more crimes are charged of the same class, which can be properly joined, they may be included in the same indictment in separate counts; and in such case, if two or more indictments are found, the court may order them consolidated. While this section may authorize different descriptions of the same offense in separate counts of the same indictment, in order to prevent a fatal variance, the intent to authorize the joinder of separate crimes in different counts of the same indictment is apparent. Such joinder prevents the trouble, delay, and cost of more than one trial. The delay, cost, and harassment of several prosecutions on a number of indictments are often almost as oppressive as the punishment imposed. The object of uniting offehses of the same class, or of ordering the consolidation of different indictments, is not to prevent the punishment of the offender for more than one offense. But sucli would be tbe effect if punishment could not be inflicted on tbe separate counts. Tbe same class of conduct constitutes tbe two misdemeanors charged in this indictment, and they could be properly united. Tbe provisions of -the section quoted are not new so far as it relates to misdemeanors. “Two or more misdemeanors, growing out of separate and distinct transactions, may, according to tbe doctrine which appears to prevail everywhere, be joined in tbe same indictment when embraced in different counts. It is not easy to say precisely what is tbe limit of this doctrine, except that tbe judge will exercise at least bis supervision to tbe extent of protecting tbe prisoner from being prejudiced in bis rights of defense. Where a statute makes it a misdemeanor to sell intoxicating liquor without a license, and imposes a fine for each sale, several counts for distinct sales may be joined in one indictment, and tbe accumulated penalty imposed:” Bish. Crim. Proc. (2d Ed.) sec. 452; Martin v. People, 76 Ill., 499.

Tbe law as stated by Bishop is tbe prevailing doctrine in England and in those states of this country where a different rule is not provided by statute. Tbe ancient common law was otherwise; and a few recent cases in this country may be found to tbe contrary. Tbe leading case so bolding is that of People v. Liscomb, 60 N. Y., 559. In that case tbe relator was tried upon an indictment containing 220 distinct counts, and convicted on 204. He was sentenced to twelve successive full terms of imprisonment of one year each, and fines of- $250 each; upon other counts, two additional fines, amounting in all to $12,500. Tbe appellate court held that be could not be sentenced on but one count. This was a hard case; and furnishes a precedent contrary to tbe weight of authority. Where there are several charges in different counts of an indictment against tbe same person for tbe same act or transaction, but one punishment could be imposed; but, where tbe acts or transactions are different, and constitute different offenses, and belong to the same class, and may be properly joined, separate punishments may be imposed on each count. Tbe case of Ex parte Hibbs, 26 Fed. Rep., 421, of tbe date of March 16, which is a carefully considered decision by Judge Deady, expressly rules this point.

It was also argued that the trial of the defendant for two offenses before the same jury deprived him of the benefit of three peremptory challenges. It is conceded that the defendant was not deprived of any challenge for implied or actual bias, or for any sufficient cause. He had three peremptory challenges in selecting a jury of twelve men. If a separate trial on each count had been given him, he would have had no more. It is true be would have had the right to challenge six men in selecting two juries; but then there would have been but three challenges for each fifteen qualified jurors, and the defendant was as likely to secure twelve good jurors with three peremptory challenges in one trial as twenty-four with six such, challenges in two trials. The end sought by peremptory challenges, as well as for cause, is intelligent, fair and impartial jurors.

The appellant also objects to Philip Grill as a juror, because it was alleged that the evidence did not show that he was a citizen of the United States. It does not appear from the record that the defendant exhausted his peremptory challenges, nor does it appear that the record contains all the evidence touching the citizenship of the juror. The evidence heard by the court satisfied it that the juror was a citizen. We must therefore presume that the evidence heard was sufficient to justify the finding of the court.

We find no error in this record, and therefore affirm the judgment of the court below.

Boreman, J., and Powers, J., concurred.