United States v. Eldredge

• Decision Date: 26 February 1887
• Citation: 5 Utah 161,13 P. 673
• Court: Utah Supreme Court
• Parties: UNITED STATES, RESPONDENT, v. HORACE S. ELDREDGE, AND ANOTHER, APPELLANTS

13 P. 673

5 Utah 161

UNITED STATES, RESPONDENT, v. HORACE S. ELDREDGE, AND ANOTHER, APPELLANTS

Supreme Court of Utah

February 26, 1887

APPEAL from a judgment of the district court of the third district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr. Le Grande Young, for appellants.

Mr. W H. Dickson, for respondent.

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

OPINION

BOREMAN, J.:

This is an action upon a recognizance in a criminal case, taken by a United States commissioner, for the appearance of the defendant therein before the district court. A complaint was filed with E. B. Critchlow, a commissioner of this court, on the sixteenth day of February, 1886, by W. H. Dickson, who being duly sworn, on information and belief complained "that George Q. Cannon, of Salt Lake City, in the County of Salt Lake, Territory of Utah, to-wit, on the twenty-fifth day of March, 1885, at Salt Lake City, in the County of Salt Lake, aforesaid, and on divers days thereafter, and continuously from the day and date last aforesaid until, to-wit, the first day of July, 1885, at said county, did unlawfully live and cohabit with more than one woman, namely, with one Martha Tolly Cannon and with one Emily Little Cannon, and that during all the period aforesaid, at the county aforesaid, he, the said George Q. Cannon, did claim, live, and cohabit with both said women as wives, all of which is contrary to the statutes of," etc. Upon this complaint, he was by the officer brought before the commissioner, who was acting as an examining magistrate; and, an examination being waived by said Cannon, he was held to answer the charge, and was admitted to bail in the sum of $ 10,000 to appear and answer said charge in the district court. In consideration of the release of said Cannon from custody, the defendants (the appellants herein) executed and delivered their undertaking in writing in said sum of $ 10,000, as follows:

"Territory of Utah, County of Salt Lake--ss.: Before Edward B. Critchlow, Esquire, commissioner of the supreme court of said territory, complaint having been made before said commissioner on the sixteenth day of February, 1886, charging George Q. Cannon with having committed the crime of unlawful cohabitation with more than one woman between the twenty-fifth day of March, A. D. 1885, and the first day of July, A. D. 1885, and said George Q. Cannon having been brought before said commissioner by virtue of a warrant in due form of law issued upon said complaint, to answer thereto, and, upon examination being waived by defendant, said defendant having been held to answer thereon, and admitted to bail by said commissioner in the sum of $ 10,000, we, Francis Armstrong and H. S. Eldredge, hereby undertake that the above-named George Q. Cannon, defendant, will appear and answer the charge above mentioned in the district court of the third judicial district of said territory, to be holden at Salt Lake City, in said judicial district, on the seventeenth day of March next, or in whatever court it may be prosecuted, and will at all times hold himself amenable to the orders and process of the court; and, if convicted, will appear for judgment, and render himself in execution thereof; or, if he fail to perform either of these conditions, we will pay to the United States of America the sum of $ 10,000.

"FRANCIS ARMSTRONG,

"H. S. ELDREDGE.

"Executed and acknowledged before me, and approved, this twenty-seventh day of February, 1886.

"E. B. CHRITCHLOW, Commissioner."

"Territory of Utah, County of Salt Lake--ss.: Horace S. Eldredge and Francis Armstrong, being each duly sworn, each for himself, says he is a resident and freeholder in said territory of Utah, and is worth the amount specified in the foregoing undertaking, over and above all debts and liabilities, exclusive of property exempt from execution.

"FRANCIS ARMSTRONG,

"H. S. ELDREDGE.

"Sworn to and subscribed before me, this twenty-seventh day of February, 1886.

"E. B. CRITCHLOW, Commissioner."

That in consideration of said undertaking, said Cannon was released from custody, but he failed to appear in the district court, as required by the undertaking, and the same was forfeited, and thereupon this action was instituted in the district court against the sureties in the undertaking, these defendants and appellants. The defendants demurred to the complaint, and, that being overruled, they filed their answer. The case was heard by the court, and judgment was given for the plaintiff. The defendants moved for a new trial, which was overruled, and thereupon the defendants appealed to this court from both the judgment and the order overruling the motion for a new trial.

1. The district court is alleged to have committed error in overruling appellant's demurrer to the complaint. The ground of this alleged error is that the complaint charges no offense to have been committed by "a male person with two or more women, the wives, or women held out as the wives, of the accused." If by this is meant that the complaint does not charge that the accused is a "male person," we deem the question to have been settled by the case of U. S. v. Cannon, 4 Utah 122, 7 P. 369, and 116 U.S. 55, 29 L.Ed. 561, 6 S.Ct. 278, and in this respect the complaint is sufficient. The demurrer is general, and under it the allegation that the accused "unlawfully lived and cohabited with more than one woman as his wife" is sufficient. It is not objected that the complaint is ambiguous or uncertain.

2. It is assigned as error that the court below admitted in evidence the complaint made before the commissioner by W. H. Dickson, and upon which the accused was held when the undertaking was given for his discharge from custody. The objection to that paper was that it alleged the crime of unlawful cohabitation against the accused "upon information and belief." The portion of the paper containing the objectionable words is as follows: "Personally appeared before me, this sixteenth day of February, 1886, W. H. Dickson, of Salt Lake City, in the county of Salt Lake, territory of Utah, who, first being duly sworn, on information and belief complains and says that," etc. In support of this assignment of error, the appellant cites us to four Michigan cases and one New York case. The latter People v. Recorder of Albany, 6 Hill 429) does not affect the question. If it has any bearing whatever, it is adverse to that of the appellants. It was a civil case, wherein the affidavit for the arrest of the defendant alleged facts in the alternative, and the court held that this could not be done. But it was held, further, that if the affidavit had shown that defendant owned tangible property, and had converted it into something else where it could not be definitely traced, the affiant might have added his belief that the avails existed in some of the forms mentioned in the statute, without specifying which.

Of the Michigan cases referred to, none showed complaints or informations for the arrest of persons for preliminary examination; and two of them were civil cases, in which it is not the policy of the law to allow the power of arrest to be used except upon clear showing. We think that the principles of the Michigan cases of People v. Heffron, 53 Mich. 527, 19 N.W. 170; Brown v. Kelley, 20 Mich. 27; Badger v. Reade, 39 Mich. 771; and Swart v. Kimball, 43 Mich. 443, 5 N.W. 635--cannot be upheld as applicable to complaints or informations for the arrest of parties for preliminary examination. This view is supported by the case of Washburn v. People, 10 Mich. 372, referred to in the case of Swart v. Kimball, supra. It was an application made for a preliminary examination, with a view to holding a party to answer an indictment. The affidavit was made upon belief, and not upon knowledge, and the supreme court of that state held it to be sufficient. That adjudication has not been overruled nor disapproved; but the court, in making reference to it in Swart v. Kimball, supra, said: "That was an information filed after the evidence of guilt had been made on preliminary examination, and the verification was required only by way of showing good faith in the prosecution, and not to make out a prima facie case." An examination of the case will show that the complaint was made with the same purpose as the one in the case before us. In affidavits generally for the arrest of alleged criminals, it is not necessary that they should show a prima facie case, but need only set forth facts tending to establish the commission of the offense and the guilt of the defendant, so that "the magistrate is satisfied therefrom that the offense complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it." Laws of Utah 1878, p. 72, section 59. After the arrest, and after the examination of the case then, if there is a prima facie case made out against the defendant, the magistrate must hold him to answer to an indictment.

If it were necessary that the affidavit for arrest should be upon knowledge, and not upon information and belief, the criminal laws generally, in this section of the country, would be a dead letter, and especially would this be the case in regard to offenses of this character, where the witnesses are almost exclusively unwilling, and hostile to the enforcement of the law. Mr. Bishop says that the doctrine of the books is that the officer may by warrant cause persons suspected of any crime to be arrested for preliminary examination with a view to holding the party to answer to the charge in the proper court. 1 Bish. Crim. Proc., sec. 225, (3d Ed.); Blodgett v. Race, 18 Hun 132. The doctrine laid down by the Michigan courts in ...