Unlawful Cohabitation

Chief Justice Zane Gives Another Muddled Definition

And Says it is Impossible to Define the Term

Royal B. Young Sentenced on Four Counts,
and Charles Denney and Ludwig Berg Each on One

This morning was the time set in the Third District Court for passing judgment upon Royal B. Young, Charles Denney, Ludwig H. Berg, George C. wood and Jens Hansen, on a charge of cohabiting with their wives.

Royal B. Young was first called, and Mr. Rawlins interposed a motion for a new trial in the first case on the grounds of errors in the charge of the Court and the insufficiency of the evidence. Mr. Rawlins showed that there was no evidence whatever of cohabitation on which a fair jury could convict, and argued that for that reason a new trial should be granted. Another trial was also asked for in the second case, on similar grounds.

Mr. Dickson argued that as the defense had not shown any reason why the cohabitation ceased, the jury were justified in finding a verdict of guilty.

The Court rendered the following decision:

The defendant in this case was charge in the indictment that, between the 1st day of June, 1883, and the 1st day of February, 1885, he unlawfully cohabited with Mary Pratt Young and with one Emma Hawlings, and the jury, from the evidence, found him guilty. A motion is now made for a new trial, and the principal reason assigned is that the evidence was insufficient to authorize the verdict. It was also alleged, as a ground for a new trial, but was not argued, that the Court erred in its charge to the jury, in order to apply the charge to the evidence, it may be necessary to understand what constitutes unlawful cohabitation. The defendant in this case was charged with cohabiting with his lawful wife, Mary Pratt Young, and a plural or polygamous wife, Emma Rawlings. The Supreme Court of the United States, in discussing the appeals in the cases of the United States against Snow and against Angus Cannon, have to effect said that the Supreme Court of this Territory is the highest tribunal for the construction of this statute, or so much of it as relates to unlawful cohabitation. And the Supreme Court of the Territory have held that a lawful marriage and the acknowledgment of that relation, in this district, is conclusive evidence of cohabitation as to the lawful wife, and no evidence can be admitted to contradict cohabitation. These facts being admitted, and I have stated this in order that there may be no misapprehension under the law as it now stands and as interpreted by the highest tribunal, a man who has a lawful wife living in this district, whom he acknowledges as his wife, cannot cohabit with any other woman as a wife. In respect to cohabitation with a plural wife, the Courts have also given general definition, and it is this: A plural or unlawful marriage being proven, or acknowledged, it is sufficient to show that the defendant visited or associated with that plural wife as his wife. And I think they have further stated and held, as to cohabitation with a woman with whom no proof of marriage is shown other than from circumstances, that if a man lives with any woman as his wife under circumstances that indicate that she is his wife, that is cohabitation as to her, without any further proof of marriage, either lawful or unlawful.

The controversy in this case is as to the cohabitation with the plural wife. The relation of husband and wife, of course, is indicated by conduct, either by language or by acts. And in this case the evidence shows that the defendant had been married to Emma Rawlings, his plural wife—that is, a form of marriage had been celebrated; that he had cohabited with her, and had lived and associated with her a portion of the time up to a few days before the first date named in this indictment, which is the 1st day of June, 1883. It also showed that a child was born during this period. There were two very important facts, indicting a peculiar relation. That is, the only inference from the facts would be cohabitation. The evidence also showed that after this period the defendant was found very early in the morning in the house and in the bedroom of his plural wife, Emma Rawlings. And the jury, I think, from the evidence, were authorized to infer that they occupied the bed together that night, or a portion of it. The circumstances, of course, before and after the period mentioned in the indictment explain the feelings of the parties, and the dispositions and habits with respect to each other, and would shed very much light upon the circumstances attending any association during the time mentioned in the indictment. No reasonable man, in considering these circumstances, and the associations between these dates, would leave out of view the light that shines in from outside of these two dates. No man would be authorized to consider, without the reflective light of these facts, the circumstances before and after the particular period. My recollection is that the defendant, according to the testimony, visited his plural wife named in that indictment between the dates name on two or three occasions. My recollection is that it is three. It is said that one was the occasion of the death of a child that was born during the period.

Another was at the birth, and the other was a few days before the birth. This association, in the light of all the other evidence of these parties, I think the jury were authorized to characterize as the association of a man with his wife, with one claiming to be his plural wife. There is no doubt but that was fact.

A stranger or a neighboring man don’t go in to witness the birth of a child by a womn who is a neighbor. He would not be permitted there. He would be invited out very suddenly by any decent husband. But the visit there was to his wife while struggling amid the pains of childbirth. He was there as her husband, and the association and conversation between them was such as would indicate to every reasonable man who saw or heard of it, that he was there claiming to be her husband. The visitation shortly before the birth of the child could not be paid to be for the purpose of visiting his child; it would be rather premature for that purpose. And the visit at the death of the child might be explained up that hypothesis. He made that visit simply to attend the death of his little child. This evidence, when all considered together, is characteristic and explained by the fact of plural marriage and of all the circumstances when considered together. Picking out one and considering it separate and apart, it might not be sufficient; but when it is all considered together, I presume that no reasonable man, sitting as the jury did and hearing that evidence, could come to any other conclusion than that during the period named in the indictment be associated with this woman as his wife. If that is so, that is sufficient.

It is said that a man may visit his children by a plural wife. That is unquestionably true. He may support them. He may support even his plural wife. He may support any woman who needs support or whom he is willing to support, or any person. But he must be careful in so doing that he don’t visit or associate with the woman as his wife. Of course, in laying down a definition of cohabitation, it is impossible to state precisely all the evidence that would be given in any case of unlawful cohabitation. It might consist in one case as to the lawful wife or the lawful marriage, of a mere acknowledgment. As to the plural wife, it may consist of a polygamous marriage and association of any kind indicating that relation, such as visiting the house or associating with her in public places—at church, or the theatre, or other places. It may be by admissions and declarations. It may be the circumstances of the birth of a child during the period. And it is impossible to mention, in laying down the law of any one case, all the evidence that may be given in any case of fraud. It can only be defined in general terms.

In overruling this motion for a new trial, I have taken a little more time than I otherwise would, because there seems to be a disposition to misunderstand the definitions of the Corut in defining unlawful cohabitation. Of course, in this, as in all other cases, where any man or class of men claim the right to commit an act and to indulge in conduct which constitutes crime, they always cavil at the law, and fault with it, and find fault with the action of the Court and everybody who is engaged in enforcing it, simply because they think the law is wrong and it should not be enforced against them.

The motion in this case for a new trial is overruled.

The motion for a new trial in the other case was also overruled for similar reasons.

Mr. Young’s attorney then asked Mr. Dickson whether he would permit a stay of judgment for teny days, but the District Attorney refused.

Mr. Young was then called upon to received sentence, and in answer to the Court as to whether he wished to make a statement, said:

If your honor please, I can say that I placed myself, as I understood, within the meaning of the law; but I did not anticipate a ruling that would make me liable by simply visiting the ladies or upon the evidence that has convicted me; or as was stated by the prosecutor, that if the ladies mentioned had met me upon the street, or in my office, or in a place of public worship, that they [the jury] should find me guilty. My understanding of the law was that if I ceased to live in the same habitation and ceased to dwell as I had been accustomed to doing, and ceased to hold them out to the world as my wives or flaunting them before the world as my wives, I was placing myself within the law; and that idea was strengthened by answers that your honor made to me on one occasion when I asked you with regard to these things. I put the question to you in this manner: Could I call upon and visit them in case of sickness, or could I take them to a concert or to a meeting at the Tabernacle, or could I take them out for a drive, and be within the law. And your honor told me that if that was all I would be within the law.

The Court—You are mistaken about that; I never said so.

Mr. Young—Well, I so understood your honor, at any rate.

Court—That is a false statement. You misunderstood me, probably; I don’t know.

Mr. Young—Your honor remembers me having conversation with you?

Court—I remember you asked me one day, casually, as I was passing along. I told you that you could not live with more than one woman or associate with more than one woman as a wife.

Mr. Young—My object in asking your honor was to know if I could do that and he, within the law, and if I could not I did not propose to do it. And I misunderstood your honor to say that if that was all I could be within the law. Of course I have nothing to say in regard to the interpretation that is placed upon the law. I can say this: My idea is that the essence of the crime is the intent to commit the crime, and my intent was to place myself within the law and not to hold the law in contempt.

The Court then asked Mr. Young to state what assurance he had to make that he would obey the law in future, “as interpreted by the Courts,” and Mr. Young replied:

If your honor will allow me to answer tha tin my way I would be pleased. I can say that I am the offspring of a polygamist. My mother is a polygamous wife. Going into that principle myself as a matter of conviction and as a matter of religion, believing it to be right, the ceremony that made these wives my wives according to the law, cannot be broken, unless one or the other of us be guilty of adultery. That is so understood by the church to which I belong. For me to say that I would not allow these ladies to speak to me on the street, or to call at my office, or worship God in the same building; or that I would not support them, or call upon them in case of sickness, agitation, or distress or want—I could not, your honor, make such promises as that. If I should, it wouls eem to me that I would brand myself before the world or at least brand the ladies as kept mistresses, and my mother as a harlot and myself as a bastard; that if I admit that that was wrong, and that if I believe it to be right and don’t stand by my convictions, I would be branded as a coward. My own conscience would smit me thus; I cannot promise, your honor, to—

The Court here interrupted Mr. Young and followed with some long, rambling and rather contradictory remarks (for which we have not space today); after which sentence was pronounced in both cases. On the first indictment the full penalty was imposed—six months’ imprisonment and a fine of $300 and costs. On the second indictment, with three counts, sentence on each count was placed at four months’ imprisonment and $200 and costs. The total penalty amounts to eighteen months’ imprisonment and $900 fine and costs.

[Journal History of the Church of Jesus Christ of Latter-day Saints, June 1, 1886, 3-4]
[Deseret News, June 1, 1886]

[transcribed and proofread by David Grow, May 2006]


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