Where a district court in the Territory of Utah refuses to issue
a writ of habeas corpus involving the question of personal freedom,
an appeal lies to this Court from its order and judgment of
refusal.
The offense of cohabiting with more than one woman, created by §
3 of the Act of Congress of March 22, 1852, c. 47, 22 Stat. 31, is
a continuous offense, and not one consisting of an isolated
act.
Page 120 U. S. 275
S. was convicted separately in a district court of the Territory
of Utah, on three indictments under that section, covering together
a continuous period of time, each covering a different part, but
the three parts being continuous, the indictments being found at
the same time, by the same grand jury, on one oath and one
examination of the same witnesses, covering the whole continuous
time. One judgment was entered on the three convictions. It first
imposed a term of imprisonment and a fine. It next imposed two
further successive terms of imprisonment, each to begin at the
expiration of the last preceding sentence and judgment, with two
further fines. It set forth the time embraced by each indictment
and specified each of the three punishments as being imposed in
respect of a specified one of the indictments. On a petition to the
district court of the territory by the defendant for a writ of
habeas corpus, setting forth that he had been imprisoned under the
judgment for more than the term first imposed and had paid the fine
first imposed, and that the other two punishments were in excess of
the authority of the trial court, the writ was refused. On appeal
to this Court,
Held:
(1) There was but one entire offense for the continuous
time.
(2) The trial court had no jurisdiction to inflict a punishment
in respect of more than one of the convictions.
(3) As the want of jurisdiction appeared on the face of the
proceedings, the defendant could be released from imprisonment on a
habeas corpus.
(4) The order and judgment of the court below must be reversed
and the case be remanded to that court with a direction to grant
the writ of habeas corpus prayed for.
This was an appeal from an order of court refusing an
application for a writ of habeas corpus. The case is stated in the
opinion of the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
Section 3 of the Act of Congress approved March 22, 1882, c. 47,
22 Stat. 31, provides 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,
Page 120 U. S. 276
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."
The grand jury of the United States for November term, 1885, in
the District Court of the First Judicial District in and for the
Territory of Utah, on the fifth of December, 1885, presented and
filed in that court, in open court, three several indictments, in
the name of the United States, against Lorenzo Snow, each of them
found December 2, 1885, designated as No. 741, No. 742, and No.
743. Each of them was founded on the foregoing statute, and they
were alike in all respects, except that each covered a different
period of time. No. 741 alleged that Snow, on the 1st of January,
1883,
"at the County of Box Elder, in the said district, territory
aforesaid, and within the jurisdiction of this court, and on divers
other days and times thereafter, and continuously between said 1st
day of January, A.D. 1883, and the 31st day of December, A.D. 1883,
did then and there unlawfully live and cohabit with more than one
woman, to-wit, with Adeline Snow, Sarah Snow, Harriet Snow, Eleanor
Snow, Mary H. Snow, Phoebe W. Snow, and Minnie Jensen Snow, and
during all the period aforesaid at the county aforesaid, he, the
said Lorenzo Snow, did unlawfully claim, live, and cohabit with all
of said women as his wives."
No. 742 alleged that Snow, on the 1st of January, 1885,
"and on divers other days and times thereafter, and continuously
between said 1st day of January, A.D. 1885, and the 1st day of
December, A.D. 1885, did then and there unlawfully live and cohabit
with more than one woman, to-wit, with"
the seven persons above named, "and during all the period
aforesaid . . . did unlawfully claim, live, and cohabit with all of
said women as his wives." No. 743 alleged that Snow, on the first
of January, 1884,
"and on divers other days and times thereafter, and continuously
between said first day of January, A.D. 1884, and the thirty-first
day of December, A.D. 1884, did then and there unlawfully live and
cohabit with more than on woman, to-wit, with"
the seven persons above named, "and during all the period
aforesaid . . . did unlawfully
Page 120 U. S. 277
claim, live, and cohabit with all of said women as his
wives."
At the time of filing each indictment, it was properly endorsed
"a true bill, etc., and with the names of the witnesses." The same
sixteen witnesses were examined before the grand jury, "on one oath
and one examination, as to the alleged offense during the entire
time mentioned in all of said three indictments, and" they were
found "upon the testimony of witnesses given on an examination
covering the whole time specified in said three indictments." On
the 11th of December, 1885, the defendant was arraigned on each of
the three indictments, and interposed a demurrer to each, which
being overruled, he pleaded not guilty to each.
Indictment No. 742 was first tried, covering the period from and
including January 1, 1885, to December 1, 1885. On the 31st of
December, 1885, a verdict of guilty was rendered, and the court
fixed the 16th of January, 1886, as the time for passing
sentence.
Indictment No. 743 was next tried, covering the period from and
including January 1, 1884, to December 31, 1884. The defendant
orally put in an additional plea in bar, setting up his prior
conviction on Indictment No. 742, and that the offense charged in
all of the indictments was one continuous offense, and the same
offense, and not divisible. On an oral demurrer to this plea, the
demurrer was sustained. On the trial by the jury, a verdict of
guilty was rendered on the 5th of January, 1886, and the court
fixed the 16th of January, 1886, as the time for passing
sentence.
Indictment No. 741 was next tried, covering the period from and
including January 1, 1883, to December 31, 1883. The defendant
orally put in an additional plea in bar, setting up his prior
convictions on indictments Nos. 742 and 743, and that the offense
charged in all of the indictments was one continuous offense, and
the same offense, and not divisible. On an oral demurrer to this
plea, the demurrer was sustained. On the trial by the jury, a
verdict of guilty was rendered on the 5th of January, 1886, and the
court fixed the 16th of January, 1886, as the time for passing
sentence.
Page 120 U. S. 278
The record of the court states that on the last-named day the
following proceedings took place in open court:
"
[Title of Court and Cause]"
"The defendant, and his counsel, F. S. Richards and C. C.
Richards, Esq'rs (of counsel), came into court. The defendant was
duly informed of the nature of the indictments found against him on
the 5th day of December, 1885, by the grand jury of this court, for
the crime of unlawful cohabitation, committed as stated in said
indictments, and during the time, as follows,
viz.,
Indictment No. 741, between the 1st day of January, A.D. 1883, and
the 31st day of December, A.D. 1883; Indictment No. 742, between
the 1st day of January, A.D. 1885, and the 1st day of December,
A.D. 1885; Indictment No. 743, between the 1st day of January, A.D.
1884, and the 31st day of December, A.D. 1884; of his arraignment
and plea of not guilty as charged in said three indictments, on the
16th day of December, A.D. 1885; of his trial and the verdicts of
the juries; Indictment No. 742, 'Guilty as charged in the
indictment,' on December 31, 1885; Indictment No. 743, 'Guilty as
charged in the indictment,' on January 5, 1886; Indictment No. 741,
'Guilty as charged in the indictment,' on January 5, 1886."
"The said defendant was then asked if he had any legal cause to
show why judgment should not be pronounced against him, to which he
replied that he had none, and no sufficient cause being shown or
appearing to the court, thereupon the court renders its judgment
that whereas said Lorenzo Snow having been duly convicted in this
Court of the crime of unlawful cohabitation, it is ordered,
adjudged, and decreed that said Lorenzo Snow be imprisoned in the
penitentiary of the Territory of Utah for a period of six months,
and that he do forfeit and pay to the United States a fine of three
hundred dollars, and the costs of this prosecution, and that he do
stand committed into the custody of the U.S. marshal for said
territory until such fine and costs be paid in full. (As to
Indictment No. 741.) "
Page 120 U. S. 279
"And it is further ordered, adjudged, and decreed that at the
expiration of the sentence and judgment rendered on said Indictment
No. 741, said Lorenzo Snow be imprisoned in the penitentiary of
Utah Territory for a period of six months, and that he do forfeit
and pay to the United States the sum of three hundred dollars, and
the costs of this prosecution, and that he do stand committed into
the custody of the U.S. marshal for said territory until such fine
and costs be paid in full. (As to Indictment No. 742.)"
"And it is further ordered, adjudged, and decreed that at the
expiration of the sentence and judgment as last above rendered on
said Indictment No. 742, said Lorenzo Snow be imprisoned in the
penitentiary of Utah Territory for a period of six months, and that
he do forfeit and pay to the United States the sum of three hundred
dollars, and the costs of this prosecution, and that he do stand
committed into the custody of the U.S. marshal for said territory
until such fine and costs be paid in full. (As to Indictment No.
743.)"
"The said defendant, Lorenzo Snow, is remanded into the custody
of the United States Marshal for Utah Territory, to be by him
delivered into the custody of the warden or other proper officer in
charge of said penitentiary, and said warden or other proper
officer of said penitentiary is hereby commanded to receive of and
from the said United States marshal, him, the said Lorenzo Snow,
convicted and sentenced as aforesaid, and him, the said Lorenzo
Snow, keep and imprison in said penitentiary for the periods as in
this judgment ordered and specified."
"ORLANDO W. POWERS,
Judge"
On the 22d of October, 1886, the defendant filed in the District
Court of the Third Judicial District of the Territory of Utah a
petition setting forth that he is a prisoner confined in the
penitentiary of the Territory of Utah,
"by virtue of the warrant, judgment, and proceedings of record,
including three indictments against your petitioner, his
arraignment thereon, and pleas thereto, respectively, as well as
demurrers to such pleas, decisions thereof, and verdicts of the
jury,
Page 120 U. S. 280
being the record of said matters in the District Court of the
First Judicial District of the Territory of Utah,"
copies of all which papers, sixteen in number, were annexed to
the petition; that under said judgment and in execution thereof, he
had been imprisoned in said penitentiary for more than six months,
to-wit, continuously since the 12th day of March, 1886, and had
paid $300 in satisfaction of the fine adjudged against him, and
"all the costs awarded and assessed against him on said
prosecution;" that his imprisonment is illegal in that "the court
had no jurisdiction to pass judgment" against him
"upon more than one of the indictments or records referred to in
its said judgment, for the reason that the offense therein set out
is the same as that contained and set out in each of the other said
indictments and records, and the maximum punishment which the court
had authority to impose was six months' imprisonment and a fine of
three hundred dollars;"
and "that by his said imprisonment, your petitioner is being
punished twice for one and the same offense." The prayer is for a
writ of habeas corpus to the end that the petitioner may be
discharged from custody.
On a hearing on the petition, the following order was made by
the court on the 23d of October, 1886:
"The petition of Lorenzo Snow for a writ of habeas corpus having
been presented to the court, with the exhibits attached as a part
thereof, and the court having fully considered the application and
petition and the exhibits attached, finds that the facts alleged
and shown by the petition and exhibits are insufficient to
authorize the issuance of the writ, and the court being of the
opinion, from the allegations and facts stated in the petition and
exhibits, that, if the writ be granted and a hearing given, the
petitioner could not be discharged from custody, it is ordered and
adjudged by the court that the said application for a writ of
habeas corpus be, and the same is hereby, refused, to which ruling
and refusal applicant, by his counsel, excepts."
From this order and judgment, the petitioner has appealed to
this Court.
There can be no doubt that the action of the district court,
Page 120 U. S. 281
as set forth in its order and judgment refusing to issue the
writ, was, so far as an appeal is concerned, equivalent to a
refusal to discharge the petitioner on a hearing on the return to a
writ, and that under § 1909 of the Revised Statutes an appeal lies
to this Court from that order and judgment. It is contended for the
United States that as the court which tried the indictments had
jurisdiction over the offenses charged in them, it had jurisdiction
to determine the questions raised by the demurrers to the oral
pleas in bar in the cases secondly and thirdly tried; that it tried
those questions; that those questions are the same which are raised
in the present proceeding; that they cannot be reviewed on habeas
corpus by any court, and that they could only be reexamined here on
a writ of error, if one were authorized. For these propositions the
case of
Ex Parte Bigelow, 113 U.
S. 328, is cited. But for the reasons hereafter stated,
we are of opinion that the decision in that case does not apply to
the present one.
The offense of cohabiting with more than one woman, in the sense
of the section of the statute on which the indictments were
founded, may be committed by a man by living in the same house with
two women whom he had theretofore acknowledged as his wives, and
eating at their respective tables, and holding them out to the
world by his language or conduct, or both, as his wives, though he
may not occupy the same bed or sleep in the same room with them, or
either of them, or have sexual intercourse with either of them. The
offense of cohabitation, in the sense of this statute, is committed
if there is a living or dwelling together as husband and wife. It
is inherently a continuous offense, having duration, and not an
offense consisting of an isolated act. That it was intended in that
sense in these indictments is shown by the fact that in each the
charge laid is that the defendant did on the day named and
"thereafter and continuously," for the time specified, "live and
cohabit with more than one woman, to-wit with" the seven women
named, and "during all the period aforesaid . . . did unlawfully
claim, live, and cohabit with all of said women as his wives."
Thus, in each indictment,
Page 120 U. S. 282
the offense is laid as a continuing one and a single one for all
the time covered by the indictment, and, taking the three
indictments together, there is charged a continuing offense for the
entire time covered by all three of the indictments. There was but
a single offense committed prior to the time the indictments were
found. This appears on the face of the judgment. It refers to the
indictments as found "for the crime of unlawful cohabitation
committed" "during the time" stated, divided into three periods,
according to each indictment. For so much of the offense as covered
each of these periods, the defendant is, according to the judgment,
to be imprisoned for six months and to pay a fine of $300. The
division of the two years and eleven months is wholly arbitrary. On
the same principle, there might have been an indictment covering
each of the thirty-five months, with imprisonment for seventeen and
a half years and fines amounting to $10,500, or even an indictment
covering every week, with imprisonment for seventy-four years and
fines amounting to $44,400, and so on,
ad infinitum, for
smaller periods of time. It is to prevent such an application of
penal laws that the rule has obtained that a continuing offense of
the character of the one in this case can be committed but once,
for the purposes of indictment or prosecution, prior to the time
the prosecution is instituted. Here, each indictment charged
unlawful cohabitation with the same seven women; all the
indictments were found at the same time, by the same grand jury,
and on the testimony of the same witnesses, covering a continuous
period of thirty-five months, and it was the mere will of the grand
jury which divided the time among three indictments, and stopped
short of dividing it among thirty five or one hundred fifty-two, or
even more. It was quite in consonance with this action that the
prosecuting officer tried the indictments in the inverse order of
the time to which each related -- that for 1885 first, that for
1884 next, and that for 1883 last. Hence, the defendant could not
on any trial plead or show that he had before been tried on an
indictment in respect to a period of time antedating that laid in
the indictment on trial. Then, after the verdicts, there was
Page 120 U. S. 283
not a separate judgment in each case, but only one judgment in
form was rendered for all the cases. The judgment says on its face
that the proper officer of the penitentiary is to imprison the
defendant therein "for the periods as in this judgment ordered and
specified" -- that is, for three successive periods of six months
each, the first period to apply to the indictment thirdly tried,
the second period to apply to the indictment first tried, and to
begin when the sentence and judgment on the indictment thirdly
tried should expire, and the third period to apply to the
indictment secondly tried, and to begin when the sentence and
judgment on the indictment secondly tried should expire. No case is
cited where what has been done in the present case has been held to
be lawful. But the uniform current of authority is to the contrary,
both in England and in the United States.
A leading case on the subject in England is
Crepps v.
Durden, Cowper 640. In that case, the statute. 29 Car. 2, c.
7, provided
"That no tradesman or other person shall do or exercise any
worldly labor, business, or work of their ordinary calling on the
Lord's day, works of necessity and charity only excepted."
A penalty of five shillings was affixed to each offense, and it
was made cognizable by a justice of the peace. Crepps, a baker, was
convicted before Durden, a justice, by four separate convictions
"of selling small hot loaves of bread, the same not being any work
of charity, on the same day, being Sunday," in violation of that
statute. Durden issued four warrants, one on each conviction, to
officers, who, under them, levied four penalties of five shillings
each on the goods of Crepps. The latter sued Durden and the others
in trespass in the King's Bench in 1777, and had a verdict before
Lord Mansfield for three sums of five shillings each, subject to
the opinion of the court. The first question raised was whether, in
the action of trespass, and before the convictions were quashed,
their legality could be objected to; and next whether the levy
under the last three warrants could be justified. It was contended
for the plaintiff that the last three convictions were in excess of
the jurisdiction of the justice,
Page 120 U. S. 284
because the offense created by the statute was the exercising of
a calling on the Lord's day, and, if the plaintiff had continued
baking from morning till night, it would still be but one offense;
that the four convictions were for one and the same offense, and
that an action would lie against the justice and the officers. On
the other side, it was urged that, as the justice had general
jurisdiction of the offense in question, the convictions must be
quashed or reversed on appeal before they could be questioned. At a
subsequent day, the unanimous opinion of the court was delivered by
Lord Mansfield. He first considered the question whether the
legality of the convictions could be objected to before they were
quashed. As to this, he said:
"Here are three convictions of a baker for exercising his trade
on one and the same day, he having been before convicted for
exercising his ordinary calling on that identical day. If the act
of Parliament gives authority to levy but one penalty, there is an
end of the question, for there is no penalty at common law. On the
construction of the act of Parliament, the offense is 'exercising
his ordinary trade upon the Lord's day,' and that without any
fractions of a day, hours, or minutes. It is but one entire
offense, whether longer or shorter in point of duration. So,
whether it consists of one or of a number of particular acts, the
penalty incurred for this offense is five shillings. There is no
idea conveyed by the act itself that, if a tailor sews on the
Lord's day, every stitch he takes is a separate offense; or, if a
shoemaker or carpenter work for different customers at different
times on the same Sunday, that those are so many separate and
distinct offenses. There can be but one entire offense on one and
the same day. And this is a much stronger case than that which has
been alluded to, of killing more hares than one on the same day.
Killing a single hare is an offense; but the killing ten more on
the same day will not multiply the offense or the penalty imposed
by the statute for killing one. Here repeated offenses are not the
object which the legislature had in view in making the statute, but
singly, to punish a man for exercising his ordinary trade and
calling on a Sunday. Upon this construction, the justice had no
jurisdiction whatever in respect of the
Page 120 U. S. 285
three last convictions. How, then, can there be a doubt but that
the plaintiff might take this objection at the trial?"
As to justifying the levy under the last three warrants, Lord
Mansfield said:
"But what could the justification have been in this case if any
had been attempted to be set up? It could only have been this: that
because the plaintiff had been convicted of one offense on that
day, therefore the justice had convicted him in three other
offenses for the same act. By law, that is no justification. It is
illegal on the face of it, and therefore, as was very rightly
admitted by the counsel for the defendant in the argument, if put
upon the record by way of plea, would have been bad, and on
demurrer must have been so adjudged. Most clearly, then, it was
open to the plaintiff, upon the general issue, to take advantage of
it at the trial. The question does not turn upon niceties, upon a
computation how many hours distant the several bakings happened, or
upon the fact of which conviction was prior in point of time, or
that for uncertainty in that respect they should all four be held
bad. But it goes upon the ground that the offense itself can be
committed only once in the same day."
In the case at bar, the statute provides that if any male person
shall thereafter cohabit with more than one woman, he shall, on
conviction, be punished thus and so. The judgment in the case,
taken in connection with the other proceedings in the record and
the statute, shows, within the principle of
Crepps v.
Durden, that there was but one entire offense, whether longer
or shorter in point of duration, between the earliest day laid in
any indictment and the latest day laid in any. There can be but one
offense between such earliest day and the end of the continuous
time embraced by all of the indictments. Not only had the court
which tried them no jurisdiction to inflict a punishment in respect
of more than one of the convictions, but, as the want of
jurisdiction appears on the face of the judgment, the objection may
be taken on habeas corpus when the sentence on more than one of the
convictions is sought to be enforced. If such an objection could be
taken in
Crepps v. Durden, in a collateral action for
damages, it can be taken on a habeas corpus to release the
party
Page 120 U. S. 286
from imprisonment under the illegal judgment. These
considerations distinguish the case from that of
Ex Parte
Bigelow, ubi supra, and bring it within the principle of such
cases as
Ex Parte
Milligan, 4 Wall. 2,
71 U. S. 131;
Ex Parte
Lange, 18 Wall. 163,
85 U. S. 178,
and
Ex Parte Wilson, 114 U. S. 417.
A distinction is laid down in adjudged cases and in text writers
between an offense continuous in its character, like the one at
bar, and a case where the statute is aimed at an offense that can
be committed
uno ictu. The subject is discussed in 1
Wharton's Criminal Law, 9th ed., §§ 27, 931, and the cases on the
subject are cited.
The principle which governs the present case has been recognized
and approved in many cases in the United States.
Washburn v.
McInroy (1810), 7 Johns. 134;
Mayor v. Ordrenan
(1815), 12 Johns. 122;
Tiffany v. Driggs (1816), 13 Johns.
253;
State v. Commissioners (1818), 2 Murph. 371;
United States v. McCormick (1830), 4 Cranch.C.C. 104;
State v. Nutt (1856), 28 Vt. 598;
State v.
Lindley (1860), 14 Ind. 430;
Sturgis v. Spofford
(1871), 45 N.Y. 446;
Fisher v. New York Central & Hudson
River Railroad (1871), 46 N.Y. 644;
State v. Egglesht
(1875), 41 Ia. 574;
United States v. New York Guaranty &
Indemnity Co. (1875), 8 Benedict 269;
United States v.
Erie Railway Co. (1877), 9 Benedict 67, 68.
The case of
Commonwealth v. Connors, 116 Mass. 35,
gives no support to the view that a grand jury may divide a single
continuous offense running through a past period of time into such
parts as it may please, and call each part a separate offense. On
the contrary, in
Commonwealth v. Robinson, 126 Mass. 259,
it is said that the offense of keeping a tenement for the illegal
sale of intoxicating liquors on a day named and on divers other
days and times between that day and a subsequent day is but one
offense, even though the tenement is kept during every hour of the
time between those two days, such offense being continuous in its
character.
On the whole case, we are unanimously of opinion that
The order and judgment of the District Court for the Third
Judicial District of Utah Territory must be reversed and the case
be remanded to that court with a direction to grant
Page 120 U. S. 287
the writ of habeas corpus prayed for and to take such
proceedings thereon as may be in conformity with law and not
inconsistent with the opinion of this Court.