State v. Barlow

Decision Date01 December 1944
Docket Number6744,6748,6749,6742,6738,6743,6745,6740,6739,6746,6741,6737,6751,6750,6747
Citation107 Utah 292,153 P.2d 647
CourtUtah Supreme Court
PartiesSTATE v. BARLOW et al

Certiorari dismissed by U. S. Supreme Court.

Appeal from District Court, Third District, Salt Lake County; Ray Van Cott, Jr., Judge.

Albert Edmund Barlow, Morris Quincy Kunz, David Brigham Darger Ianthus Winford Barlow, Dr. Rulon Clark Allred, Oswald Brainich, Edmund F. Barlow, Arnold Boss, Heber Kimball Cleveland, Louis Alma Kelsch, John Yates Barlow, Joseph White Musser, Joseph Lyman Jessup, Alma Adelbert Timpson, and Charles Frederick Zitting were convicted of the crime of unlawful cohabitation, and they appeal. The cases were consolidated for purposes of appeal.

Affirmed.

Judgment affirmed.

Claude T. Barnes, J. H. McKnight, Knox Patterson, and Edwin D Hatch, all of Salt Lake City, for appellants.

Grover A. Giles, Atty Gen., Brigham E. Roberts, of Salt Lake City, and W. Stanford Wagstaff, Asst. Atty. Gen., for respondent.

McDONOUGH, Justice. WOLFE, C. J., and LARSON, WADE, and TURNER, JJ., concur.

OPINION

McDONOUGH, Justice.

These cases all involve the same legal questions and, in substance, the same facts. They are consolidated for purposes of appeal.

Each of the defendants was charged with and convicted of the crime of unlawful cohabitation in violation of Sec. 103-51-2, U. C. A. 1943, which statute is a companion statute to Sec. 103-51-1, which prohibits the practice of polygamy. The trial in each case was based on a stipulation of facts tendered by each defendant and adopted by the district attorney.

Sec. 103-51-2, supra, reads:

"If any person cohabits with more than one person of the opposite sex, such person is guilty of a felony.

"Any person, except the defendant, may be compelled to testify in a prosecution for unlawful cohabitation; provided, however, that the evidence given in such prosecution shall not be used against him in any proceeding, civil or criminal, except for perjury in giving such testimony. A person so testifying shall not thereafter be liable to indictment, prosecution, or punishment for the offense concerning which such testimony was given."

One of the stipulations referred to--and they are all identical except for names and the dates when the acts were committed--is as follows:

"That the said Albert Edmund Barlow on and between October 14, 1941, and the 1st day of March, A. D. 1944, at the County of Salt Lake, State of Utah, did cohabit with more than one person of the opposite sex, to wit: With Amanda Kate Kilgrow, Vio Frazer, Marine Owen; and that said association was based on the belief of the said defendant and the women in the divinity of the Doctrine of the Covenants of the Church of Jesus Christ of Latter-day Saints (exclusive of the Manifesto). No testimony was offered concerning sexual intercourse of the defendant with said women."

On each separate appeal the same various errors are specified. The principal contentions and arguments of appellants are in substance that: (1) The statute, the information and the stipulation each fail to state the commission of any public offense, for the word "cohabit" is not defined, and nothing more than innocent association can be inferred. (2) The prosecution and conviction of each defendant constitutes a violation of the rights of religious freedom guaranteed by the First and Fourteenth Amendments to our Federal Constitution, and also by the Treaty of Guadalupe Hidalgo of 1848, 9 Stat. 922. (3) The stipulation of facts shows that the conduct of each defendant was based upon belief in the "Doctrine and Covenants" (exclusive of the Manifesto) of the Church of Jesus Christ of Latter-day Saints, and that there was therefore no criminal intent. (4) The inclusion of the "irrevocable ordinance" in Article III of the Constitution of Utah, whereby the practice of polygamy is prohibited, was the result of coercion by Congress and that said provision together with all legislation enacted thereunder was and is null and void. (5) The statute is unconstitutional in that more than one subject was included in the bill and that its subject is not clearly expressed in its title. (6) The statute is special legislation and therefore void.

A brief review of a phase of the history of Utah and of some of the factors which brought about the legislation assailed should be of aid in the consideration of the contentions of defendants. The people of the Church of Jesus Christ of Latter-day Saints (for convenience called the "Mormon Church" hereinafter or the "church") came to this area to escape persecution. Belief in what those people claimed to be divine revelations to Joseph Smith as a prophet, contained in part in the "Doctrine and Covenants," aroused a great deal of opposition. Section 132 of said Doctrine and Covenants as now published, is what is known as the "revelation on eternal marriage"; and in connection therewith appears the doctrine of "plural marriage," whereby a man might marry more than one woman if he obtained the consent of his wife and permission of the presiding officials of the church.

Whether or not such permissions were prerequisite to valid plural marriage in the eyes of the church, and whether appellants otherwise interpret the doctrine, we are not here concerned. We mention such condition because of their bearing on the meaning and effect of the "Manifesto," hereinafter mentioned. In any event, the practice of polygamy among adherents of the Mormon faith in this territory was attacked not only by the non-Mormons of the region but by diverse groups elsewhere in this country. Agitation was widespread to bring about its suppression by law.

As a result Congress in 1862 enacted what became known as Sec. 5352, Rev. Stat. U.S. (12 Stat. 501, 18 U.S.C.A. § 513):

"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 of not more than five years."

After some years of delay, some executive measures were adopted for the enforcement of this act in the territories. In Reynolds v. United States, 98 U.S. 145, 161, 25 L.Ed. 244, the defendant who was convicted under the foregoing statute proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriage," and he contended that he believed it was his religious duty to practice polygamy and that he was therefore protected in such practice by the First Amendment to our Federal Constitution. His contention was rejected and his conviction affirmed. However, the United States Supreme Court in its opinion did not discuss the question of whether the act did or could relate to those who entered into polygamy prior to the enactment of the statute.

On March 22, 1882, the statute was amended, and there was added among other provisions, the following section prohibiting "unlawful cohabitation," 22 Stat. 31:

"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."

Congress made it clear in 1887 when a proposed constitution for the State of Utah was submitted by the people here, that statehood would not be granted without some unequivocal constitutional provision prohibiting plural marriage. The proposed Constitution of 1887 prohibited polygamy, making its practice a misdemeanor. Various public officials urged church leaders to renounce sanction for plural marriage, but the church officials were evidently reluctant to entertain such counsel until the constitutionality of the measures enacted to stamp out polygamy had been thoroughly tested. On September 25, 1890, four months after Late Corporation of Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 478, was decided, Wilford Woodruff, then president of the church, issued an "Official Declaration" commonly known as the "Manifesto," which declaration was approved by his associate counsellors and apostles. In that declaration it is stated:

"We are not teaching polygamy or plural marriage, nor permitting any person to enter into its practice. * * *

"Inasmuch as laws have been enacted by Congress forbidding plural marriages, which laws have been pronounced constitutional by the court of last resort, I hereby declare my intention to submit to those laws, and to use my influence with the members of the church over which I preside to have them do likewise.

"* * * And I now publicly declare that my advice to the Latter-day Saints is to refrain from contracting any marriage forbidden by the law of the land.

"Wilford Woodruff

"President of the Church of Jesus Christ of Latter-day Saints."

At a general conference of the church held on October 6, 1890, the following resolution presented by Lorenzo Snow, one of the twelve apostles of the church, was unanimously adopted by vote of the conference:

"I move that, recognizing Wilford Woodruff as the president of the Church of Jesus Christ of Latter-day Saints, and the only man on the earth at the present time who holds the keys of the sealing ordinances, we consider him fully authorized by virtue of his position to issue the Manifesto which has been read in our hearing, and which is dated September 24th, 1890,...

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16 cases
  • Potter v. Murray City
    • United States
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    ...449, 58 S.Ct. 666, 668, 82 L.Ed. 949 (1938); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); State v. Barlow, 107 Utah 292, 153 P.2d 647 (1944), appeal dismissed for want of substantial federal question, 324 U.S. 829, 65 S.Ct. 916, 89 L.Ed. 1396 (1945), reh'g. den......
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    ...some time ago that there has been no attempt to change the State's laws, `nor is such attempt likely.'" Id. (quoting State v. Barlow, 107 Utah 292, 153 P.2d 647, 654 (1944)). We find no fault in the reasoning of the Potter decision, and Holm has made no attempt to attack its rationale. Ther......
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