United States v. Kuntze

• Decision Date: 11 March 1889
• Citation: 2 Idaho 480,21 P. 407
• Parties: UNITED STATES v. KUNTZE
• Court: Idaho Supreme Court

21 P. 407

2 Idaho 480

UNITED STATES v. KUNTZE

Supreme Court of Idaho

March 11, 1889

TIME AND PLACE OF HOLDING COURT-POWER OF JUDGES TO FIX.-The judges of the district court have power when assembled at the capital to fix the time and places for holding court in their respective district.

SAME-WHERE UNITED STATES IS A PARTY.-They also have the power to fix the time and places for holding terms of court for the trial of causes where the United States is a party, or where such cause arises under the constitution and laws of the United States.

VENIRE-JURORS-MARSHAL.-In such cases it is proper to issue the venire to the marshal of the United States, directing him to summon jurors from the body of the district at large.

INDICTMENT-BIGAMY-COHABIT.-In an indictment under section 3 of the act of Congress approved March 22, 1882, chapter 47, entitled "An act to amend section 5352 of the Revised Statutes of the United States, in reference to bigamy and for other purposes," the use of the word "cohabit" is sufficient, and it is not necessary to set out at large in the indictment the meaning or definition of the word itself. In the trial of a cause arising under said section the prosecuting attorney referred to the fact that the defendant had failed to testify as a witness in his own behalf when he had the right to do so. This is held error, but is cured by the court subsequently, at the request of the defendant, charging the jury in substance that the fact that the defendant did not testify in his own behalf should not in any manner be considered by the jury as a circumstance against him.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Affirmed.

Smith &amp Smith, for Appellant.

There is no such crime known to the laws of the United States as "unlawful cohabitation," nor is there such a crime as "cohabitation." The time of holding the district courts, as well as the place, is fixed by the judges of the supreme court; but they must be held in the "several counties or subdivisions" of the district. (U. S. Rev. Stats., sec. 1914.) To convict under the indictment, it was incumbent on the government to prove two principal facts: 1. That the defendant lived (cohabited) with the two women named in the indictment; 2. That a marriage, real or ostensible, with each of these women, had preceded this cohabitation. (U. S. Rev. Stats., sec. 1865.)

James H. Hawley, United States District Attorney.

The word "cohabit," when used in a criminal statute, means "together as man and wife." (Idaho Rev. Stats., sec. 7684; Webster's Dictionary, 284; Cannon v. United States, 116 U.S. 74. 6 S.Ct. 278.) While this court has the power to set terms of court in each of the counties of the territory, it would still have the right to determine in which of said counties United States business should be transacted. (U. S. Rev. Stats., sec. 1910; U. S. Rev. Stats., sec. 1874.)

LOGAN J. Weir, C. J., and Berry, J., concurring.

OPINION

LOGAN, J.

The defendant was indicted by the grand jury at Blackfoot, Idaho territory, in October, 1887, for a violation of section 3 of the act of Congress approved March 22, 1882, chapter 47, entitled "An act to amend section 5352 of the Revised Statutes of the United States, in reference to bigamy and for other purposes." The section reads as follows: "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 $ 300, or by imprisonment for not more than six months, or by both said punishments, in the discretion of the court." The defendant was tried and convicted at the June term, 1888, of the district court of Bingham county, for a violation of the preceding section, and sentenced to suffer the extreme penalty of the law, and from that judgment he has appealed to this court.

The indictment referred to reads as follows: "Samuel Kuntze is accused by the grand jury of the United States within and for the third judicial district of Idaho territory, duly summoned and impaneled upon their oaths, by this indictment, of the crime of unlawful cohabitation, committed as follows, to wit: The said Samuel Kuntze, at Bear Lake county, within said third judicial district of Idaho territory, on the first day of December, A. D. 1884, and thereafter, on divers other days, and continuously from the said first day of December, A. D. 1884, up to and including the day of finding this indictment, did unlawfully cohabit with more than one woman, to wit, with Mrs. Samuel Kuntze and one Caroline Wuthrick, against the peace and dignity of the United States, and contrary to the form, force and effect of the United States statute in such case made and provided." To this indictment the defendant demurred upon the ground that the same did not state facts sufficient to constitute an offense, in this: That it charges a mere conclusion of law; that it did not state whether he cohabited with the two women named as his wives or otherwise; and that the court, being a district court for Bingham county, had no jurisdiction of the offense attempted to be charged, it being alleged to have been committed in Bear Lake county. The demurrer was overruled by the court below, which decision is assigned as error by the defendant.

The first objection goes to the meaning of the word "cohabit," used in section 3 of the act, and also in the indictment. This word has several meanings, as defined by Webster and Worcester, and among its definitions we find that it is defined, "To dwell or live together as husband and wife"; and this unquestionably is the sense in which it is used both in the statute and in the indictment. The context in which it is found, and the manifest evils which gave rise to the statute in regard to cohabitation, require that the word should have the meaning assigned to it. (Cannon v. United States, 116 U.S. 55, 6 S.Ct. 278, 118 U.S. 355, 29 L.Ed. 561, 6 S.Ct. 1064.) Taking the meaning of the word as defined, and the manner in which it is used in the indictment, we think it is sufficient to charge the defendant with the crime he is alleged to have committed. Certainly, the defendant was fully aware of the nature of the offense with which he was charged; and, taking into consideration sections 7684 and 7686 of the Revised Statutes of Idaho, we think the indictment is sufficient.

The second objection is practically disposed of by this court when it has disposed of the first objection. At any rate, it becomes more a question of evidence than of law, if the meaning of the word "cohabit" is to be in the sense used. The opinion of the supreme court is very full upon this subject, as will appear on page 71 of Cannon v. United States, 116 U.S. Although it is true that this case cannot be considered as authority, yet the opinion of the court upon the questions raised is of as much value as if the case was of the most binding authority.

The third objection goes to the jurisdiction of the court, and the construction of the jury by which the defendant was convicted. No question is raised as to the manner of drawing the grand jury, for the reason that the manner of their drawing does not appear to the court. The question is raised, however, as to the power of the court to summon such grand jury from the district at large, and the right of the United States marshal to execute the process. The same questions are raised in regard to the trial jury, and we will consider and dispose of both the questions at the same time.

The only question...