State v. Barlow
Decision Date | 01 December 1944 |
Docket Number | 6744,6748,6749,6742,6738,6743,6745,6740,6739,6746,6741,6737,6751,6750,6747 |
Citation | 107 Utah 292,153 P.2d 647 |
Court | Utah Supreme Court |
Parties | STATE 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.
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:
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:
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:
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:
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,...
To continue reading
Request your trial-
Potter v. Murray City
...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......
-
Brown v. Buhman
...that there has been no attempt to change the State's laws, ‘nor is such attempt likely.’ ” 760 F.2d at 1067 (quoting State v. Barlow, 107 Utah 292, 153 P.2d 647, 654 (1944)). Potter's exceptionally speculative observation is, however, beside the point because the equal footing argument is u......
-
State v. Holm
...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......
-
Gregory v. Shurtleff
...the plaintiffs alleged a direct and personal injury sufficient to satisfy the traditional standing test. See, e.g., State v. Barlow, 107 Utah 292, 153 P.2d 647, 655 (1944) (persons convicted under a law criminalizing polygamous lifestyle alleging “that the statute actually contains four sub......
-
Polygamists Out of the Closet: Statutory and State Constitutional Prohibitions Against Polygamy Are Unconstitutional Under the Free Exercise Clause
...for which no "if" is required), the state had not attempted to change the policy in the interim. Id. at 1068 (citing Utah v. Barlow, 153 P.2d 647, 654 (Utah 1944) (stating that convicted polygamists "cannot challenge the validity of ratification a half century after it transpired"), cert. d......
-
Scrutinizing Polygamy: Utah's Brown v. Buhman and British Columbia's Reference Re: Section 293
...(Utah 1898) (holding that the language should not be interpreted to exclude offenses covered beyond just polygamy). 205. State v. Barlow, 153 P.2d 647, 651-52 (Utah 1944) (holding that the prohibition of cohabitation was not unconstitutionally vague).206. UTAH CODE ANN. § 76-7-101(1) (West ......
-
Release number 201310047 of 2013-03-08
...449, 58 S. Ct. 666, 668, 82 L. Ed. 949 (1938); Cantwell v. Connecticut, 310 US, 296, 60 S. Ct. 900, 84 L. Ed. 1213 (1840); 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,......
-
Release number 201323025 of 2013-06-07
...Hendnekson, 245 F. 75 (Utah 1626); Lovely. Cl of Gain, 203 U.S. 444 (1938), Cantwell. Connecticut, 310 U.S. 296, (1840): State v. Barlow, 153 P.2d 647 (Utah 1944), appeal dismissed {or want of substantial federal question, 324 U.S. 629 (1945): Cleveland v, United States, 146 F.2d 730 (10th ......
-
Release number 201325015 of 2013-06-21
...58 S. Cl. 666, 668, 82 L. Ed. 949 (1938); Cantwell v, Connecticut, 510 USS, 296, 60 8. Ct. 900, 84 L. Ed, 1213 (1940); State v. Barlow, 107 Utah 292, 153 P.2d {847 (1844), appeal dismissed for want of substanial federal question, 324 U.S. 829, 65 S. Ct 916, 89 L. Ed, 1396 (1945), retvg. den......