Cannon v. United States

• Citation: 116 U.S. 55,29 L.Ed. 561,6 S.Ct. 278
• Parties: CANNON v. UNITED STATES. 1 Filed
• Decision Date: 14 December 1885
• Court: United States Supreme Court

6 S.Ct. 278

116 U.S. 55

29 L.Ed. 561

CANNON v. UNITED STATES.¹

Filed December 14, 1885.

.

S. Richards, for plaintiff in error.

Sol. Gen. Goode, for the United States.

Mr. Justice Blatchford delivered the opinion in error

Angus M. Cannon was indicted by a grand jury in the district court of the Third judicial district in and for the territory of Utah, in February, 1885, for a violation of section 3 of the act of congress approved March 22, 1882, c. 47, entitled 'An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes.' 22 St. 31. Section 1 of the act amends section 5352 of the Revised Statutes, which was a re-enactment of section 1 of the act of July 1, 1862, c. 123, (12 St. 501,) and, in order that the amendment may be understood, the original and new sections 5352 are here placed side by side, the parts in each which differ from the other being in italic:

Original.

'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 five hundred dollars, and by imprisonment for a term not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage is absent for five successive years, and is not known to such person to be living; nor to any person by reason of any former marriage which has been dissolved by decree of a competent court; nor to any person by reason of any former marriage which has been pronounced void by decree of a competent court, on the ground of nullity of the marriage contract.' New.

'Every person who has a husband or wife living, who, in a territory or other place over which the United States have exclusive jurisdiction, hereafter marries another, whether married or single, and any man who hereafter simultaneously, or on the same day, marries more than one woman in a territory or other place over which the United States have exclusive jurisdiction, is guilty of polygamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term of not more than five years; but this section shall not extend to any person by reason of any former marriage whose husband or wife by such marriage shall have been absent for five successive years, and is not known to such person to be living, and is believed by such person to be dead; nor to any person by reason of any former marriage which shall have been dissolved by a valid decree of a competent court; nor to any person by reason of any former marriage which shall have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract.'

Sections 2 to 8, inclusive, of the act of 1882 are follows:

'Sec. 2. That the foregoing provisions shall not affect the prosecution or punishment of any offense already committed against the section amended by the first section of this act.

'Sec. 3. That if any male person, in a territory or other place over which the United States have exclusive jurisdiction, hereafter cohabits with more than one woman, he shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not more than three hundred dollars, or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court.

'Sec. 4. That counts for any or all of the offenses named in sections 1 and 3 of this act may be joined in the same information or indictment.

'Sec. 5. That in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman—First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either of the foregoing sections, or by section fifty-three hundred and fifty-two of the Revised Statutes of the United States, or the act of July 1, 1862, entitled 'An Act to punish and prevent the practice of polygamy in the territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the territory of Utah;' or, second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense named in sections one or three of this act; but if he declines to answer on any ground, he shall be rejected as incompetent.

'Sec. 6. That the president is hereby authorized to grant amnesty to such classes of offenders guilty of bigamy, polygamy, or unlawful cohabitation, before the passage of this act, on such conditions and under such limitations as he shall think proper; but no such amnesty shall have effect unless the conditions thereof shall be complied with.

'Sec. 7. That the issue of bigamous or polygamous marriages, known as Mormon marriages, in cases in which such mar- riages have been solemnized according to the ceremonies of the Mormon sect, in any territory of the United States, and such issue shall have been born before the first day of January, A. D. 1883, are hereby legitimated.

'Sec. 8. That no polygamist, bigamist, or any person cohabiting with more than one woman, and no woman cohabiting with any of the persons described as aforesaid in this section, in any territory or other place over which the United States have exclusive jurisdiction, shall be entitled to vote at any election held in any such territory or other place, or be eligible for election or appointment to, or to be entitled to hold, any office or place of public trust, honor, or emolument, in, under, or for any such territory or place, or under the United States.'

Section 9 of the act contains provisions declaring vacant registration and election offices, and enacting that persons shall be appointed to execute those offices, by a board of five persons, which is directed to canvass votes to be returned to it for members of the legislative assembly, with the proviso 'that said board of five persons shall not exclude any person, otherwise eligible to vote, from the polls on account of any opinion such person may entertain on the subject of bigamy or polygamy; nor shall they refuse to count any such vote on account of the opinion of the person casting it on the subject of bigamy or polygamy.'

The indictment against Cannon was as follows: 'The grand jury of the United States of America within and for the district aforesaid, in the territory aforesaid, being duly impaneled and sworn, on their oaths do find and present that Angus M. Cannon, late of said district, in the territory aforesaid, to-wit, on the first day of June, A. D. 1882, and on divers other days, and continuously between the said first day of June, A. D. 1882, and the first day of February, A. D. 1885, at the county of Salt Lake and territory of Utah, did unlawfully cohabit with more than one woman, to-wit, one Amanda Cannon and one Clara C. Mason, sometimes known as Clara C. Cannon, against the form of the statute of the said United States in such case made and provided, and against the peace and dignity of the same.' The defendant pleaded not guilty, and the case was tried in April, 1885, resulting in a verdict of guilty, and a judgment imposing a fine of $300, imprisonment in the penitentiary, for six months, and further imprisonment till the payment of the fine.

After the jury was impaneled and sworn, and the prosecution had called a witness, the defendant objected to the giving of any evidence under the indictment, on the ground that the indictment was defective and did not charge any criminal offense, nor any offense under the statutes of the United States, nor the offense described in the statute, either in the statutory words or equivalent words, and, especially, did not show that the person charged was a male person; and was insufficient to warrant a verdict or support a judgment of conviction. The court overruled the objection, and the defendant excepted. The following proceedings then took place, as shown by the bill of exceptions:

Clara C. Cannon, a witness called for the prosecution, was sworn, when the defendant renewed the said objection to the indictment, with a like ruling by the court and a like exception. The witness testified as follows: 'My full name is Clara C. Cannon. I know the defendant. I have been his wife. I was his wife. I was married to him about ten years ago, and have since lived at 246 First South street, Salt Lake City. I live there now, and have lived in the same house since shortly after I was married. The defendant has lived in the same house part of the time, and in the same house during the past three years. I have one living child, which is a child of that marriage, born January 11, 1882. I have had two other children by that marriage; both born before the living one. In this house I occupy two rooms on the ground floor, a parlor and a dining-room, on the east side. My...