ERROR to the Supreme Court of the Territory of Utah. The facts are stated in the opinion of the court.
The opinion of the court was delivered by: Mr. Justice Woods delivered the opinion of the court. Sect. 5352 of the Revised Statutes of the United States declares:––
Mr. Arthur Brown, Mr. W. N. Dusenberry, and Mr. E. D. Hoge for the plaintiff in error.
Mr. Assistant Attorney-General Smith, contra.
'Every person having a husband or wife living, who marries another, whether married or single, in a Territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than five hundred dollars and by imprisonment for a term not more than five years.'
The plaintiff in error was indicted under this section in the Third District Court of Utah, at Salt Lake City. He was convicted. He appealed to the Supreme Court of the Territory, where the judgment of the District Court was affirmed.
That judgment is now brought to this court for review upon writ of error.
The indictment charged that the plaintiff in error, John Miles, did, on Oct. 24, 1878, at Salt Lake County, in the Territory of Utah, marry one Emily Spencer, and that afterwards, and while he was so married to Emily Spencer, and while she was still living, did, on the same day and at the same county, marry one Caroline Owens, the said Emily Spencer, his former wife, being still living and at that time his legal wife.
The criminal procedure of Utah is regulated by an act of the territorial legislature, passed Feb. 22, 1878. The following are the sections pertinent to this case, which prescribe the rules for the impanelling of juries:––
'SECT. 241. A particular cause of challenge is:––
'1. For such a bias as, when the existence of the facts is ascertained, in judgment of law, disqualifies the juror, and which is known in this act as implied bias.
'2. For the existence of a state of mind on the part of the juror which leads to a just inference, in reference to the case, that he will not act with entire impartiality, which is known in this act as actual bias.
'SECT. 246. If the facts are denied, the challenge must be tried as follows: (1.) If it be for implied bias, by the court; (2.) If it be for actual bias, by triers.'
'SECT. 247. The triers are three impartial persons, not on the jury panel, appointed by the court. All challenges for actual bias must be tried by three triers thus appointed, a majority of whom may decide.'
'SECT. 249. Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry.'
'SECT. 250. Other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of evidence on the trial of the challenge.'
'SECT. 252. On the trial of a challenge for actual bias, when the evidence is concluded, the court must instruct the triers that it is their duty to find the challenge true, if, in their opinion, the evidence warrants the conclusion that the juror has such a bias against the party challenging him as to render him not impartial; and that if, from the evidence, they believe him free from such bias, they must find the challenge not true; that a hypothetical opinion unaccompanied with malice or ill-will, founded on hearsay or information supposed to be true, is of itself no evidence of bias sufficient to disqualify a juror. The court can give no other instruction.'
'SECT. 253. The triers must thereupon find the challenge either true or not true, and their decision is final. If they find it true, the juror must be excluded.'
Upon the trial of the case in the District Court of the Territory, Oscar Dunn and Robert Patrick were called as jurors. They were challenged for actual bias, and sworn upon their voire dire. Three triers were appointed by the court to pass upon the challenges to the jurors. Dunn, in answer to questions propounded to him, testified that he believed polygamy to be right, that it was ordained of God, and that the revelations concerning it were revelations from God, and that those revelations should be obeyed, and that he who acted on them should not be convicted by the law of the land.
The juror was challenged by the prosecution 'for actual bias for the existence of a state of mind on his part which led to a just inference that he would not act with entire impartiality.'
The triers found the challenge true, and the juror was rejected.
Robert Patrick was examined on his voire dire, and testified that he believed that the revelation given to Joseph Smith touching polygamy came from God, that it was one of God's laws to his people, and that he who practised polygamy, conscientiously believing that revelation to be from God, was doing God's will. He also testified that, in his opinion, the law of Congress was in conflict with that law of God; that Congress had the right to pass such a law; and that on the trial of a person who was in the practice of polygamy charged with bigamy he would consider it his duty, if satisfied by the evidence, to find the defendant guilty, and that he would do so.
The juror was challenged for actual bias, and the triers found the challenge true, and the juror was excused. A large number of other jurors were examined and challenged, and excused on the same grounds.
Upon the trial, evidence was given tending to show that a short time before the date laid in the indictment, Oct. 24, 1874, the plaintiff in error was in treaty for marrying, at or about the same time, three young women, namely, Emily Spencer, Caroline Owens, and Julia Spencer, and that there was a discussion between them on the question which should be the first wife; and that upon appeal to John Taylor, president of the Mormon Church, the plaintiff in error and the three women being present, it was decided by him that Emily Spencer, being the eldest, should be the first wife; Caroline ...