ERROR to the Supreme Court of the Territory of Utah.
This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows:--
'Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years.'
The prisoner pleaded in abatement that the indictment was not found by a legal grand jury, because fifteen persons, and no more, were impanelled and sworn to serve as a grand jury at the term of the court during which the indictment was found, whereas sect. 808 of the Revised Statutes of the United States enacts that every grand jury impanelled before any District or Circuit Court shall consist of not less than sixteen persons.
An act of the legislature of Utah of Feb. 18, 1870, provides that the court shall impanel fifteen men to serve as a grand jury. Compiled Laws of Utah, ed. of 1876, p. 357, sect. 4.
The court overruled the plea, on the ground that the territorial enactment governed.
The prisoner then pleaded not guilty. Several jurors were examined on their voire dire by the district attorney. Among them was Eli Ransohoff, who, in answer to the question, 'Have you formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar?' said, 'I have expressed an opinion by reading the papers with the reports of the trial.'
Q. 'Would that opinion influence your verdict in hearing the evidence?'
A. 'I don't think it would.'
By the defendant: 'You stated that you had formed some opinion by reading the reports of the previous trial?'
Q. 'Is that an impression which still remains upon your mind?'A. 'No; I don't think it does: I only glanced over it, as everybody else does.'
Q. 'Do you think you could try the case wholly uninfluenced by any thing?'
Charles Read, called as a juror, was asked by the district attorney, 'Have you formed or expressed any opinion as to the guilt or innocence of this charge?'
A. 'I believe I have formed an opinion.'
By the court: 'Have you formed and expressed an opinion?'
A. 'No, sir; I believe not.'
Q. 'You say you have formed an opinion?'
A. 'I have.'
Q. 'Is that based upon evidence?'
A. 'Nothing produced in court.'
Q. 'Would that opinion influence your verdict?'
A. 'I don't think it would.'
By defendant: 'I understood you to say that you had formed an opinion, but not expressed it.'
A. 'I don't know that I have expressed an opinion: I have formed one.'
Q. 'Do you now entertain that opinion?'
A. 'I do.'
The defendant challenged each of these jurors for cause. The court overruled the challenge, and permitted them to be sworn. The defendant excepted.
The court also, when Homer Brown was called as a juror, allowed the district attorney to ask him the following questions: Q. 'Are you living in polygamy?' A. 'I would rather not answer that.' The court instructed the witness that he must answer the question, unless it would criminate him. By the district attorney: 'You understand the conditions upon which you refuse?' A. 'Yes, sir.'-Q. 'Have you such an opinion that you could not find a verdict for the commission of that crime?' A. 'I have no opinion on it in this particular case. I think under the evidence and the law I could render a verdict accordingly.' Whereupon the United States challenged the said Brown for favor, which challenge was sustained by the court, and the defendant excepted.
John W. Snell, also a juror, was asked by the district attorney on voire dire: Q. 'Are you living in polygamy?' A. 'I decline to answer that question.'-Q. 'On what ground?' A. 'It might criminate myself; but I am only a fornicator.' Whereupon Snell was challenged by the United States for cause, which challenge was sustained, and the defendant excepted.
After the trial commenced, the district attorney, after proving that the defendant had been married on a certain day to Mary Ann Tuddenham, offered to prove his subsequent marriage to one Amelia Jane Schofield during the lifetime of said Mary. He thereupon called one Pratt, the deputy marshal, and showed him a subpoena for witnesses in this case, and among other names thereon was the name of Mary Jane Schobold, but no such name as Amelia Jane Schofield. He testified that this subpoena was placed in his hands to be served.
Q. 'Did you see Mr. Reynolds when you went to see Miss Schofield?'
A. 'Yes, sir.'
Q. 'Who did you inquire for?'
A. 'I inquired for Mary Jane Schofield, to the best of my knowledge. I will state this, that I inserted the name in the subpoena, and intended it for the name of the woman examined in this case at the former term of the court, and inquired for Mary Jane Schofield, or Mrs. Reynolds, I do not recollect certainly which.'
Q. 'State the reply.'
A. 'He said she was not at home.'
Q. 'Did he say any thing further.'
A. 'I asked him then where I could find her. I said, 'Where is she? And he said, 'You will have to find out."
Q. 'Did he know you to be a deputy marshal?'
A. 'Yes, sir.'
Q. 'Did you tell him what your business was as deputy marshal?'
A. 'I don't remember now: I don't think I did.'
Q. 'What else did he say?'A. 'He said, just as I was leaving, as I understood it, that she did not appear in this case.'
The court then ordered a subpoena to issue for Amelia Jane Schofield, returnable instanter.
Upon the following day, at ten o'clock A.M., the said subpoena for the said witness having issued about nine o'clock P.M. of the day before, the said Arthur Pratt was again called upon, and testified as follows:--
Q. (By district attorney.) 'State whether you are the officer that had subpoena in your hands.' (Exhibiting subpoena last issued, as above set forth.)
A. 'Yes, sir.'
Q. 'State to the court what efforts you have made to serve it.'
A. 'I went to the residence of Mr. Reynolds, and a lady was there, his first wife, and she told me that this woman was not there; that that was the only home that she had, but that she hadn't been there for two or three weeks. I went again this morning, and she was not there.'
Q. 'Do you know any thing about her home,-where she resides?'
A. 'I know where I found her before.'
A. 'At the same place.'
Q. 'You are the deputy marshal that executed the process of the court?'
A. 'Yes, sir.'
Q. 'Repeat what Mr. Reynolds said to you when you went with the former subpoena introduced last evening.'
A. 'I will state that I put her name on the subpoena myself. I know the party, and am well acquainted with her, and I intended it for the same party that I subpoenaed before in this case. He said that she was not in, and that I could get a search-warrant if I wanted to search the house. I said, 'Will you tell me where she is?' He said, 'No; that will be for you to find out.' He said, just as I was leaving the house,-I don't remember exactly what it was, but my best recollection is that he said she would not appear in this case.'Q. 'Can't you state that more particularly?'
A. 'I can't give you the exact words, but I can say that was the purport of them.'
Q. 'Give the words as nearly as you can.'
A. 'Just as I said, I think those were his words.'
The district attorney then offered to prove what Amelia Jane Schofield had testified to on a trial of another indictment charging the prisoner with bigamy in marrying her; to which the prisoner objected, on the ground that a sufficient foundation had not been laid for the introduction of the evidence.
A. S. Patterson, having been sworn, read, and other witnesses stated, said Amelia's testimony on the former trial, tending to show her marriage with the defendant. The defendant excepted to the admission of the evidence.
The court, in summing up to the jury, declined to instruct them, as requested by the prisoner, that if they found that he had married in pursuance of and conformity with what he believed at the time to be a religious duty, their verdict should be 'not guilty,' but instructed them that if he, under the influence of a religious belief that it was right, had 'deliberately married a second time, having a first wife living, the want of consciousness of evil intent-the want of understanding on his part that he was committing crime-did not excuse him, but the law inexorably, in such cases, implies criminal intent.'
The court also said: 'I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children,-innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory, just so do these victims multiply and spread themselves over the land.'
To the refusal of the court to charge as requested, and to the charge as given, the prisoner excepted. The jury found him guilty, as charged in the indictment; and the judgment that he be imprisoned at hard labor for a term of two years, and pay a fine of $500, rendered by the District Court, having been affirmed by the Supreme Court of the Territory, he sued out this writ of error.
The assignments of error are set out in the opinion of the court.
Mr. George W. Biddle and Mr. Ben Sheeks for the plaintiff in error.
First, The jury was improperly drawn. Two of the jurors were challenged for cause by the defendant below, because they admitted that they had formed, and still entertained, an opinion upon the guilt or innocence of the prisoner. The holding by a juror of any opinions which would disqualify him from rendering a verdict in accordance with the law of the land, is a valid objection to his serving.
An opinion based merely upon a hypothetical case, as that 'if so and so is true, the prisoner is guilty,' is not always sufficient; but where the opinion is as to the actual fact of guilt or innocence, it is a disqualification, according to all the authorities. Burr's Trial, 414, 415; United States v. Wilson, 1 Baldw. 83; Ex parte Vermilyea, 6 Cow. (N. Y.) 563; The People v. Mather, 4 Wend. (N. Y.) 238; Cancemi v. People, 16 N. Y. 502; Fouts v. The State, 11 Ohio St. 472; Neely v. The People, 23 Ill. 685; Schoeffler v. The State, 3 Wis. 831; Trimble v. The State, 2 Greene (Iowa), 404; Commonwealth v. Lesher, 17 Serg. & R. (Pa.) 155; Staup v. Commonwealth, 74 Pa. St. 458; Armistead's Case, 11 Leigh (Va.), 658; Stewart v. The State, 13 Ark. 740.
It was clearly erroneous for the prosecution to ask several of the jurymen, upon voire dire, whether they were living in polygamy; questions which tend to disgrace the person questioned, or to render him amenable to a criminal prosecution, have never been allowed to be put to a juror. Anonymous, Salk. 153; Bacon, Abr., tit. Juries, 12(f); 7 Dane, Abr. 334; Hudson v. The State, 1 Blackf. (Ind.) 319.
Second, The proof of what the witness, Amelia Jane Schofield, testified to in a former trial, under another indictment, should not have been admitted. The constitutional right of a prisoner to confront the witness and cross-examine him is not to be abrogated, unless it be shown that the witness is dead, or out of the jurisdiction of the court; or that, having been summoned, he appears to have been kept away by the adverse party on the trial. It appeared not only that no such person as Amelia Jane Schofield had been subpoenaed, but that no subpoena had ever been taken out for her. An unserved subpoena with the name of Mary Jane Schobold was shown. At nine o'clock in the evening, during the trial, a new subpoena was issued; and on the following morning, with no attempt to serve it beyond going to the prisoner's usual residence and inquiring for her, the witness Patterson was allowed to read from a paper what purported to be statements made by Amelia Jane Schofield on a former trial. No proof was offered as to the genuineness of the paper or its origin, nor did the witness testify to its contents of his own knowledge. This is in the teeth of the ruling in United States v. Wood (3 Wash. 440), and the rule laid down in all the American authorities. Richardson v. Stewart, 2 Serg. & R. (Pa.) 84; Chess v. Chess, 17 id. 409; Huidekopper v. Cotton, 3 Watts (Pa.) 56; Powell v. Waters, 17 Johns. (N. Y.) 176; Cary v. Sprague, 12 Wend. (N. Y.) 45; The People v. Newman, 5 Hill (N. Y.), 295; Brogy v. The Commonwealth, 10 Gratt. (Va.) 722; Bergen v. The People, 17 Ill. 426; Dupree v. The State, 33 Ala. 380.
Third, As to the constitutionality of the Poland Bill. Rev. Stat., sect. 5352. Undoubtedly Congress, under art. 4, sect. 3, of the Constitution, which gives 'power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,' and under the decisions of this court upon it, may legislate over such territory, and regulate the form of its local government. But its legislation can be neither exclusive nor arbitrary. The power of this government to obtain and hold territory over which it might legislate, without restriction, would be inconsistent with its own existence in its present form. There is always an excess of power exercised when the Federal government attempts to provide for more than the assertion and preservation of its rights over such territory, and interferes by positive enactment with the social and domestic life of its inhabitants and their internal police. The offence prohibited by sect. 5352 is not a malum in se; it is not prohibited by the decalogue; and, if it be said that its prohibition is to be found in the teachings of the New Testament, we know that a majority of the people of this Territory deny that the Christian law contains any such prohibition.
The Attorney-General and The Solicitor-General, contra.
MR. CHIEF JUSTICE WAITE delivered the opinion of the court.