criminal intent, and renders the offender liable the same as if the intent existed. United States v. Thomson,* 12 Fed. R., 245.

§ 850. An officer may be said to act fraudulently when he acts in bad faith, in disregard of his official obligation and legal duty. The law exacts from him fidelity, care and diligence in the discharge of his duties, and if, in disregard of his official duties and obligations. he acts carelessly and indifferently, so that evil and mischief result, which can be traced to the negligent and indifferent conduct of the officer, he may be held responsible, and cannot escape upon the plea that he had no actual fraudulent intent in doing what he did, or in failing to do the thing which the law required. Such negligence is criminal in law. United States v. Baldridge,* 11 Fed. R., 552.

XI. POLYGAMY.

SUMMARY- Religious belief will not justify a crime, § 851.- Statutes constitutional, § 852.Charge as to consequences of polygamy, § 853.

$851. Religious belief is no justification for the commission of any overt act pronounced criminal by the laws of the United States. Religious belief is no justification in a prosecution for polygamy. Reynolds v. United States, § 854-865.

§ 852. The statutes of the United States punishing polygamy are not in violation of the first amendment to the constitution, which guaranties the free exercise of religion. While the law cannot interfere with opinion and belief, it can with acts and practices. Ibid.

§ 853. In a prosecution for polygamy it is proper for the court in charging the jury to call the attention of the jury to the consequences of polygamy to the women and children affected by it. Ibid.

[NOTES.-See § 866-870.]

REYNOLDS v. UNITED STATES.

(8 Otto, 145-169. 1878.)

ERROR to the Supreme Court of the Territory of Utah.

STATEMENT OF FACTS.- Reynolds was indicted. for bigamy under section 5352 of the Revised Statutes. There was a plea in abatement that the indictment was found by a grand jury composed of only fifteen members; the plea was overruled. Objections were made to a number of persons called as jurors, and exception was taken to the admission of the testimony of a witness, given on a former trial, who had been prevented from attending the trial by the accused. There was a verdict of guilty and judgment accordingly. Further facts appear in the opinion of the court.

Opinion by WAITE, C. J.

The assignments of error, when grouped, present the following questions: 1. Was the indictment bad because found by a grand jury of less than sixteen persons? 2. Were the challenges of certain petit jurors by the accused improperly overruled? 3. Were the challenges of certain other jurors by the gov ernment improperly sustained? 4. Was the testimony of Amelia Jane Schofield, given at a former trial for the same offense, but under another indictment, improperly admitted in evidence? 5. Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty? 6. Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy? These questions will be considered in their order.

§ 854. The number of grand jurors in a territorial court is governed by ter

ritorial laws.

1. As to the grand jury. The indictment was found in the district court of the third judicial district of the territory. The act of congress "in relation to courts and judicial officers in the territory of Utah," approved June 23,

1874 (18 Stat., 253), while regulating the qualifications of jurors in the territory, and prescribing the mode of preparing the lists from which grand and petit jurors are to be drawn, as well as the manner of drawing, makes no provision in respect to the number of persons of which a grand jury shall consist. Section 808, Revised Statutes, requires that a grand jury impaneled before any district or circuit court of the United States shall consist of not less than sixteen nor more than twenty-three persons, while a statute of the territory limits the number in the district courts. of the territory to fifteen. Comp. Laws Utah, 1876, 357. The grand jury which found this indictment consisted of only fifteen persons, and the question to be determined is, whether the section. of the Revised Statutes referred to or the statute of the territory governs the

case.

By section 1910 of the Revised Statutes the district courts of the territory have the same jurisdiction in all cases arising under the constitution and laws of the United States as is vested in the circuit and district courts of the United States; but this does not make them circuit and district courts of the United States. We have often so decided. American Ins. Co. v. Canter, 1 Pet., 511; Benner v. Porter, 9 How., 235; Clinton v. Englebrecht, 13 Wall., 434. They are courts of the territories, invested for some purposes with the powers of the courts of the United States. Writs of error and appeals lie from them to the supreme court of the territory, and from that court as a territorial court to this in some cases. Section 808 was not designed to regulate the impaneling of grand juries in all courts where offenders against the laws of the United States could be tried, but only in the circuit and district courts. This leaves the territorial courts free to act in obedience to the requirements of the territorial laws in force for the time being. Clinton v. Englebrecht, supra; Hornbuckle v. Toombs, 18 Wall., 648. As congress may at any time assume control of the matter, there is but little danger to be anticipated from improvident territorial legislation in this particular. We are therefore of the opinion that the court ⠀ below no more erred in sustaining this indictment than it did at a former term, at the instance of this same plaintiff in error, in adjudging another bad which was found against him for the same offense by a grand jury composed of twenty-three persons. 1 Utah, 226.

§855. As to challenge of jurors by defendant.

2. As to the challenges by the accused. By the constitution of the United States (Amend. VI), the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt., 155 b. Lord Coke also says that a principal cause of challenge is "so called because, if it be found true, it standeth sufficient of itself, without leaving anything to the conscience or discretion of the triers" (id., 156 b); or, as stated in Bacon's Abridgment, "it is grounded on such a manifest presumption of partiality that, if found to be true, it unquestionably sets aside the juror." Bac. Abr., tit. Juries, E., 1. "If the truth of the matter alleged is admitted, the law pronounces the judgment; but if denied, it must be made out by proof to the satisfaction of the court or the triers." Id., E., 12. To make out the existence of the fact, the juror who is challenged may be examined on his voir dire, and asked any questions that do not tend to his infamy or disgrace.

All of the challenges by the accused were for principal cause. It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the

opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill-will; but all unite in holding that it must be founded on some evidence, and be more than mere impression. Some say it must be positive (Gabbet, Cr. L., 391); others, that it must be decided and substantial (Armistead's Case, 11 Leigh (Va.), 659; Wormley's Case, 10 Gratt. (Va.), 658; Neely v. The People, 13 Ill., 685); others, fixed (State v. Benton, 2 Dev. & B. L. (N. C.), 196); and still others, deliberate and settled (Staup v. Commonwealth, 74 Penn. St., 458; Curley v. Commonwealth, 84 id., 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to necessarily set the juror aside. Mr. Chief Justice Marshall, in Burr's Trial, 1 Burr's Tr., 416, states the rule to be that "light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause, the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial, because the verdict is against the evidence. It must be made clearly to appear that, upon the evidence, the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the conscience or discretion" of the court.

§ 856. A person who "believes" he has formed an opinion which he has never expressed is a competent juror.

The challenge in this case most relied upon in the argument here is that of Charles Read. He was sworn on his voir dire, and his evidence, taken as a whole, shows that he "believed" he had formed an opinion which he had never expressed, but which he did not think would influence his verdict on hearing the testimony. We cannot think this is such a manifestation of partiality as to leave nothing to the "conscience or discretion" of the triers. The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of hav

ing formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so. Such a case, in our opinion, was not made out upon the challenge of Read. The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed. Under these circumstances it is unnecessary to consider the case of Ransohoff, for it was confessedly not as strong as that of Read.

§ 857. Upon the trial of a defendant for polygamy, persons who are themselves living in polygamy are not competent jurors. If a challenge to such jurors was not good for cause it was for favor.

3. As to the challenges by the government. The questions raised upon these assignments of error are not whether the district attorney should have been permitted to interrogate the jurors while under examination upon their voir dire as to the fact of their living in polygamy. No objection was made below to the questions, but only to the ruling of the court upon the challenges after the testimony taken in answer to the questions was in. From the testimony it is apparent that all the jurors to whom the challenges related were or had been living in polygamy. It needs no argument to show that such a jury could not have gone into the box entirely free from bias and prejudice, and that if the challenge was not good for principal cause, it was for favor. A judgment will not be reversed simply because a challenge good for favor was sustained in form for cause. As the jurors were incompetent and properly excluded, it matters not here upon what form of challenge they were set aside. In one case the challenge was for favor. In the courts of the United States all challenges are tried by the court without the aid of triers (R. S., sec. 819), and we are not advised that the practice in the territorial courts of Utah is different.

§ 858. Where a witness is absent by the procurement of defendant, his testimony at a former trial may be given in evidence.

4. As to the admission of evidence to prove what was sworn to by Amelia Jane Schofield on a former trial of the accused for the same offense, but under a different indictment. The constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The constitution does not guaranty an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. In Lord Morley's Case, 6 State Tr., 770, as long ago as the year 1666, it was

resolved in the house of lords "that in case oath should be made that any witness who had been examined by the coroner and was then absent was detained by the means or procurement of the prisoner, and the opinion of the judges asked whether such examination might be read, we should answer that, if their lordships were satisfied by the evidence they had heard that the witness was detained by means or procurement of the prisoner, then the examination might be read; but whether he was detained by means or procurement of the prisoner was matter of fact, of which we were not the judges, but their lordships." This resolution was followed in Harrison's Cas, 12 id., S51, and seems to have been recognized as the law in England ever since. In Regina v. Scaife, 17 Ad. & Ell. (N. S.), 242, all the judges agreed that, if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness taken before a magistrate and in the presence of the prisoner might be read. Other cases to the same effect are to be found, and in this country the ruling has been in the same way. Drayton v. Wells, 1 Nott & M. (S. C.), 409; Williams v. State, 19 Ga., 403. So that now, in the leading text-books, it is laid down that, if a witness is kept away by the adverse party, his testimony taken on a former trial between the same parties, upon the same issues, may be given in evidence. 1 Greenl. Ev., sec. 163; 1 Taylor, Ev., sec. 446. Mr. Wharton (1 Whart. Ev., sec. 178) seemingly limits the rule somewhat, and confines it to cases where the witness has been corruptly kept away by the party against whom he is to be called, but in reality his statement is the same as that of the others; for in all it is implied that the witness must have been wrongfully kept away. The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. We are content with this long-established usage, which, so far as we have been able to discover, has rarely been departed from. It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one. $859. Quære: Whether the ruling of the trial court in admitting evidence of the former testimony of a witness, absent by defendant's procurement, is reviewable by a court of error.

Such being the rule, the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted. In Lord Morley's Case, supra, it would seem to have been considered a question for the trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as that, we have no hesitation in saying that the finding of the court below is, at least, to have the effect of a verdict of a jury upon a question of fact, and should not be disturbed unless the error is manifest. The testimony shows that the absent witness was the alleged second wife of the accused; that she had testified on a former trial for the same offense under another indictment; that she had no home, except with the accused; that at some time before the trial a subpoena had been issued for her, but by mistake she was named as Mary Jane Schobold; that an officer who knew the witness personally went to the house of the accused to serve the subpoena, and on his arrival inquired for her, either by the name of Mary Jane Schofield or Mrs. Reynolds; that he was told by the accused she was not at home; that he then said, "Will you tell me where she