13 P. 234 (Utah 1887), United States v. Kirkwood

Citation:13 P. 234, 5 Utah 123
Opinion Judge:ZANE C. J.
Party Name:UNITED STATES, RESPONDENT v. ROBERT C. KIRKWOOD, DEFENDANT
Attorney:Mr. A. G. Sutherland, Jr., and Mr. Samuel R. Thurman, for appellant. Mr. W. H. Dickson, for respondent.
Judge Panel:ZANE C. J. HENDERSON, J., and BOREMAN, J., concurred. HENDERSON, J., and BOREMAN, J., concurred.
Case Date:February 02, 1887
Court:Supreme Court of Utah
 
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Page 234

13 P. 234 (Utah 1887)

5 Utah 123

UNITED STATES, RESPONDENT

v.

ROBERT C. KIRKWOOD, DEFENDANT

Supreme Court of Utah

February 2, 1887

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Exceptions taken by the appellant overruled, and the judgment of the court affirmed.

Mr. A. G. Sutherland, Jr., and Mr. Samuel R. Thurman, for appellant.

Mr. W. H. Dickson, for respondent.

ZANE C. J. HENDERSON, J., and BOREMAN, J., concurred.

OPINION

[5 Utah 124] ZANE C. J.

The defendant was tried upon an indictment for unlawful cohabitation, was found guilty, and was sentenced to be imprisoned for the term of six months, and to pay a fine of $ 300, and from this judgment he has appealed.

While the charge against the defendant was being investigated before the grand jury he appeared, and offered himself as a witness, and the prosecuting attorney told him he could not be compelled to testify, and that he need not be sworn unless he so desired. Nevertheless, he expressed his willingness, and was sworn, and did testify. During the trial of the defendant upon the indictment, the prosecution called as witnesses two members of the grand jury by which the indictment had been found. Each of these witnesses was

Page 235

asked what the defendant had said while testifying before the grand jury. Thereupon his counsel objected for two reasons as alleged: First, that the witnesses were not competent under the statute to testify to what occurred in the grand jury room, because no charge of perjury was pending, nor had defendant given any evidence on the trial with which his statements before the grand jury could be inconsistent, and second, that the statements of defendant before the grand jury were not voluntary. But the court overruled the objection, and the witnesses respectfully testified that appellant had confessed to the grand jury that he knew the three women named in the indictment, Mary, Eliza, and Elizabeth; that they were his wives; that he had lived with them as such during the three years last preceding the finding of the indictment, and during that time had represented them to be, and had held them out to the world as, his wives. The ruling of the court in admitting this testimony, defendant has assigned as error.

The first question raised upon this record, in the order we will consider it, is this: Was it error to permit members...

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