6

7

8

The same view is sustained by the following cases: Regina v. Upton,1 Duchess of Kingston's Case,2 Truman's Case, 3 Cayford's Case, Ham's Case, State v. Libby, State v. Hilton, State v. Britton, Warner v. Commonwealth, Norwood's Case,10 Commonwealth v. Murtagh," Regina v. Newton, 12 State v. McDonald,13 Wolverton v. State, 14 State v. Seals, 15 Quin v. State, 16 Arnold v. State, 17 Cameron v. State, 18 Brown v. State, 19 Williams v. State,2 20 Commonwealth v. Jackson.21

The declarations of the plaintiff in error touching his marriage with Emily Spencer, admitted in evidence against him, appear to have been deliberately and repeatedly made, and under such circumstances as tended to show that they had reference to a formal marriage contract between him and her.

We are of opinion that the District Court committed no error in admitting such declarations, or in its charge to the jury concerning them.

The charge of the court defining what is meant by the phrase “reasonable doubt" is assigned as ground of error.

The evidence upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt to the exclusion of all reasonable doubt. Attempts to explain the term "reasonable doubt" do not usually result in making it any clearer to the minds of the jury. The language used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority.22 We think there is no error in the charge of which the plaintiff in error can justly complain.

The plaintiff in error next alleges that the description of the woman named in the indictment as the person with whom the crime of bigamy was committed, was not sufficiently specific, and that on the trial she. turned out to be not Caroline Owens, but Caroline Maile.

The designation of Caroline Owens as the person with whom the second marriage was contracted is clearly sufficient. If it were not, it is too late after verdict to object. As to the fact, the jury has found

that the person whom the plaintiff in error was charged to have married while his first wife was living, and still his legal wife, was Caroline Owens and not Caroline Maile, and that question is, therefore, conclusively settled by the verdict. This court can not re-examine questions of fact upon writ of error.1

The plaintiff in error lastly claims that the court erred in allowing Caroline Owens, the second wife, to give evidence against him touching his marriage with Emily Spencer, the alleged first wife; and in charging the jury that they might consider her testimony, if they found from all the evidence in the case that she was a second and plural wife. This assignment of error, we think, is well founded.

The law of Utah declares that a husband shall not be a witness for or against his wife, nor a wife, for or against her husband.

The marriage of the plaintiff in error with Caroline Owens was charged in the indictment and admitted by him upon the trial. The fact of his previous marriage with Emily Spencer was, therefere, the only issue in the case, and that was contested to the end of the trial. Until the fact of the marriage of Emily Spencer with the plaintiff in error was established, Caroline Owens was prima facie his wife, and she could not be used as a witness against him.

The ground upon which a second wife is admitted as a witness against her husband, in a prosecution for bigamy, is that she is shown not to be a real wife by proof of the fact that the accused had previously married another wife, who was still living and still his lawful wife. It is only in cases where the first marriage is not controverted, or has been duly established by other evidence, that the second wife is allowed to testify, and she can then be a witness to the second marriage, and not to the first.

The testimony of the second wife to prove the only controverted issue in the case, namely, the first marriage, can not be given to the jury on the pretext that its purpose is to establish her competency. As her competency depends on proof of the first marriage, and that is the issue upon which the case turns, that issue must be established by other witnesses before the second wife is competent for any purpose. Even then she is not competent to prove the first marriage for she can not be admitted to prove a fact to the jury which must be established before she can testify at all.

Witnesses who are prima facie competent, but whose competency is disputed, are allowed to give evidence on their voire dire to the court upon some collateral issue, on which their competency depends, but the testimony of a witness who is prima facie incompetent can not be given

1 Rev. Stats., sec. 1011.

to the jury upon the very issue in the case, in order to establish his competency, and at the same time prove the issue.

The authorities sustain these views.

Upon a prosecution for bigamy under the statute of 1 Jac.,1 it was said by Lord Chief Justice Hale: "The first and true wife is not allowed to be a witness against her husband, but I think it clear the second may be admitted to prove the second marriage, for she is not his wife, contrary to a sudden opinion delivered in July, 1664, at the Assizes in Surrey, in Arthur Armstrong's Case, for she is not so much. as his wife de facto." 2

So in East's Pleas of the Crown the rule is thus laid down: "The first and true wife can not be a witness against her husband, nor vice versa; but the second may be admitted to prove the second marriags, for the first being proved she is not so much as wife de facto, but that must be first established." 3 The text of East is supported by the following citation of authorities: 1 Hale's Pleas of the Crown,4 2 M. S, Sum.,5 Ann Chenny's Case.6

In Peake's Evidence (Norris), it is said: "It is clearly settled that a woman who was never legally the wife of a man, though she has been, in fact, married to him, may be a witness against him; as in an indictment for bigamy, the first marriage being proved by other witnesses, the second wife may be examined to prove the marriage with her, for she is not de jure his wife."

Mr. Greenleaf, in his work on Evidence, says: "If the first marriage is clearly proved and not controverted, then the person with whom the second marriage was had may be admitted as a witness to prove the second marriage, as well as to other facts not tending to defeat the first or legalize the second. There it is conceived she would not be admitted to prove a fact showing that the first marriage was void, such as relationship within the degrees, or the like, nor that the first wife was dead at the time of the second marriage, nor ought she to be admitted at all if the first marriage is in controversy."

The result of the authorities is that, as long as the fact of the first marriage is contested, the second wife can not be admitted to prove it. When the first marriage is duly established by other evidence, to the satisfaction of the court, she may be admitted to prove the second mar. riage, but not the first, and the jury should have been so instructed.

In this case, the injunction of the law of Utah, that the wife should not be a witness for or against her husband, was practically ignored by

the court. After some evidence tending to show the marriage of plaintiff in error with Emily Spencer, but that fact being still in controversy, Caroline Owens, the second wife, was put upon the stand and allowed to testify, to the first marriage, and the jury were, in effect, told by the court that if, from her evidence and that of other witnesses in the case, they were satisfied of the fact of the first marriage, then they might consider the evidence of Caroline Owens to prove the first marriage.

In other words, the evidence of a witness, prima facie incompetent, and whose competency could only be shown by proof of a fact which was the one contested issue in the case, was allowed to go to the jury to prove that issue, and at the same time to establish the competency of the witness.

In this we think the court erred.

It is made clear by the record, that polygamous marriages are so celebrated in Utah as to make the proof of polygamy very difficult. They are conducted in secret, and the persons by whom they are solemnized, are under such obligations of secrecy that it is almost impossible to extract the facts from them when placed upon the witness stand. If both wives are excluded from testifying to the first marriage, as we think they should be under the existing rules of evidence, testimony sufficient to convict in a prosecution for polygamy in the Territory of Utah is hardly attainable. But this is not a consideration by which we can be influenced. We must administer the law as we find it. The remedy is with Congress, by enacting such a change in the law of evidence in the Territory of Utah, as to make both wives witnesses on indictments for bigamy.

For the error indicated the judgment of the Supreme Court of the Territory of Utah must be reversed and the cause remanded to that court, to be by it remanded to the District Court, with directions to set aside the verdict and judgment and award a venire facias de novo.

So ordered.

INCEST COHABITATION BETWEEN FATHER AND STEP-DAUGHTER. CHANCELLOR v. STATE.

[47 Miss. 278.]

In the Supreme Court of Mississippi, October, 1872.

Cohabitation Between a Man and his step-daughter is not incest.

ERROR to the Circuit Court of Hinds County, First District. BROWN, J.

The opinion of the court states the facts in this case.

Harris & George, for plaintiff in error, cited Revised Code,1 Carrotti v. State, and Bishop on Marriage and Divorce.3

J. S. Morris, Attorney-General, cited Revised Code of 1871.4 TARBELL, J. The grand jury of Hinds County, on the 5th day of September, 1872, found and returned into the proper court a true bill against S. L. Chancellor, making against him the following charge as stated in the indictment, to wit: "That he, the said Chancellor, on the 30th day of July, in the year of our Lord 1872, and on divers days before and after said day, to wit: in the district aforesaid, unlawfully, willfully and incestuously, he the said S. L. Chancellor, being then and there married to, and the husband of, a certain woman whose Christian name is to the jurors unknown, did cohabit with and carnally know, one Barbara Weaver, said Barbara Weaver being then and there the daughter of the wife of said S. L. Chancellor." Having been arrested on process founded on this indictment, the said Chancellor sued out a writ of habeas corpus returnable before the Circuit Court of said Hinds county. Upon the hearing of habeas corpus it appeared that there was no other charge against the said Chancellor than the one we have above quoted from the indictment against him; whereupon he moved the court that he be discharged from custody, on the ground that said charge is not an offense under the laws of this State; which motion was by the court overruled. From this decision, refusing to discharge the relator from arrest, an appeal was taken to this court.

By section 1763, Code of 1871, following the Code of 1857, marriage is prohibited between the father and son's widow; a man and his wife's daughter, or his wife's daughter's daughter, or his wife's son's daughter; and the like prohibition is extended to females in the same degree; and all such marriages are declared incestuous and void.

Article 3, section 2487, Code of 1871, again pursuing the language of the Code of 1857, is as follows: "Persons being within the degree of consanguinity, within which marriages are declared to be incestuous and void, who shall cohabit or live together as husband and wife, upon conviction shall be punished by imprisonment in the penitentiary, for a term not exceeding ten years."

Further employing the language of the Code of 1857, article 22, section 2647, Code of 1871, declares that "if any person shall marry within the degrees prohibited by law, on conviction thereof, he shall be fined five hundred dollars, or imprisoned in the penitentiary uot longer than ten years, or by both such fine and imprisonment, and such marriage is declared void.

1 secs. 2486, 2487.

2 42 Miss. 334.

3

p. 413.

4 secs. 1763, 2487.