United States v. Cutler , 5 Utah 608 ( 1888 )

Boreman, J.:

' The appellant was convicted of the crime of polygamy. Upon the calling of the case in the district court, the defendant moved the court to quash or set aside the indictment on the ground that the indictment was found on the evidence of an incompetent witness; that said alleged incompetent witness was the legal wife of the defendant, and was compelled against her own will and against the will of the defendant, to testify before the grand jury that found the indictment. The motion to quash was overruled in the district court, and the defendant has appealed the case to this court. The statute upon which the defendant bases his objection to the indictment reads as follows: "A husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to tbe other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other.” Laws of Utah, 1884, p. 359, sec. 1156. This court has already held that a crime of this character is a crime committed by the husband against the wife, and that she is a competent witness against him. U. S. v. Bassett, ante p. 131. After further consideration of the question in the case at bar, we have no disposition to depart from the views expressed by us in the Bassett Case. The legal wife of the defendant was called as a witness before the grand jury, and, as this was a crime committed against her, we see no reason whatever for holding that she was incompetent. Had it been any other kind of a case than a crime against her, she would, under the statute just'quoted, have been incompetent as a witness.

The respondent objects to the motion to quash as not being based upon any ground authorized by law; that the fact that an indictment was found solely upon the testimony of an incompetent witness is not, under our statutes ground for setting aside or quashing an indictment. The statute specifies four grounds for setting aside an indictment, and that set up in the motion is not embraced in any of them. The first ground set forth in the statute is the only one that could by any possiblity be construed as embracing it; but we deem that it is settled by the practice in this territory, and by decisions under similar statutes, that the ground of the motion to quash is not within the statute. People v. Colby, 54 Cal., 37;. State v. Logan, 1 Nev., 509. Indeed, we do not understand the counsel for the defendant as contending that it comes within the statute; but they claim that outside of the statute, under the common law practice, the indictment should have been quashed. We do not, however, see any ground for such position. With the statute before us, we find no authority to go outside of it. The first section of the criminal procedure act says “that the mode of procedure in criminal cases in the courts in this territory shall be as as prescribed in this act.” Laws of 1878, p. 60. We deem this language exclusive, and we see no authority for allowing any other grounds for quashing an indictment than such as are specified in the statute. Why the legislature omitted from the statute, as aground of a motion to quash, that-set up in the motion of the defendant, is not a matter for our inquiry. It is not there, and it is not our province to place it there. The motion to quash was therefore properly overruled. Upon'the whole case, therefore, we see no reason for a reversal of the decision of the court below. The judgment and order of the district court are affirmed.

Henderson, J., concurred.