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S.Ct. 672 33 L.Ed. 118 (Cite
as: 131 U.S. 176, 9 S.Ct. 672) Supreme
Court of the United States. Ex
parte NIELSEN May
13, 1889 West
Headnotes Double
Jeopardy k152 135Hk152 (Formerly
110k202(1)) A
conviction under Act March 2, 1882, § 3, 22 Stat. 31, 18 U.S.C.A. § 514, making
it unlawful for a man to cohabit with more than one woman in any territory of
the United States, bars a prosecution under Act March 3, 1887, 24 Stat. 635, 18
U.S.C.A. § 516, prescribing the punishment for adultery, when the latter offense
is in fact a part of a continuous cohabitation with the woman named in the first
indictment, though the time of its commission is laid after the period during
which the cohabitation was alleged to have continued. Habeas
Corpus k31
197k31 k. If
the district court improperly sustain a demurrer to a plea of former conviction,
the defendant may be released from imprisonment under sentence for the offense
charged by habeas corpus, as the court has no authority to render the judgment. *179
**672 F. S. Richards, S. Shellabarger, and J. M. Wilson, for appellant. Sol.
Gen. Jenks, for respondent. **673
BRADLEY, J. *176
This is an appeal from a final order of the district court for the First judicial
district of the territory of Utah, refusing to issue a habeas corpus applied
for by the petitioner, who prayed to be discharged from custody and imprisonment
on a judgment rendered by said court on the 12th of March, 1889. The judgment
was that the petitioner, Hans Nielsen, having been convicted of the crime of adultery,
be imprisoned in the penitentiary of the territory for the term of 125 days. The
appeal to this court is given by section 1909 of the Revised Statutes. The case
arose upon the statutes enacted by congress for the suppression of polygamy in
Utah. The third section of the act approved March 22, 1882, entitled 'An act to
amend section fifty- three hundred and fifty-two of the Revised Statutes of the
United States, in reference to bigamy, and for other purposes,' reads 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, 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.' 22 St. 31. The third section of the act of March 3, 1887, entitled
'An act to amend an act entitled 'An act to amend section *177 fifty-three
hundred and fifty-two of the Revised Statutes of the United States, in reference
to bigamy, and for other purposes,'' reads as follows: 'Sec. 3. That whoever commits
adultery shall be punished by imprisonment in the penitentiary not exceeding three
years; and, when the act is committed between a married woman and a man who is
unmarried, both parties to such act shall be deemed guilty of adultery; and when
such act is committed between a married man and a woman who is unmarried, the
man shall be deemed guilty of adultery.' 24 St. 635. On
the 27th of September, 1888, two indictments were found against the petitioner
Nielsen, in the district court, one under each of these statutes. The first charged
that on the 15th of October, 1885, and continuously from that time till the 13th
of May, 1888, in the district aforesaid, he, the said Nielsen, did unlawfully
claim, live, and cohabit with more than one woman as his wives, to-wit, with Anna
Lavinia Nielsen and Caroline Nielsen. on the 29th of September, 1888, pleaded
guilty; and on the 19th of November following he was sentenced to be imprisoned
in the penitentiary for the term of three months, and to pay a fine of $100 and
the costs. The second indictment charged that said Nielsen, on the 14th of May,
1888, in the same district, did unlawfully and feloniously commit adultery with
one Caroline Nielsen, he being a married man, and having a lawful wife, and not
being married to said Caroline. Being arraigned on this indictment on the 29th
of September, 1888, after having pleaded guilty to the other, Nielsen pleaded
not guilty, and that he had already been convicted of the offense charged in this
indictment by his plea of guilty to the other. After he had suffered the penalty
imposed by the sentence for unlawful cohabitation, the indictment for adultery
came on for trial, and the petitioner, by leave of the court, entered orally a
more formal plea of former conviction, in which he set up the said indictment
for unlawful cohabitation, his plea of guilty thereto, and his sentence upon said
plea, and claimed *178 that the charge of unlawful cohabitation, though
formally made only for the period from 15th October, 1885, to 13th May, 1888,
yet, in law, covered the entire period from October, 1885, to the time of finding
the indictment, September 27, 1888, and thus embraced the time within which the
crime of adultery was charged to have been committed; and he averred that the
Caroline Nielsen with whom he was charged to have unlawfully cohabited as a wife
was the same person with whom he was now charged to have committed adultery; that
the unlawful cohabitation charged in the first indictment continued without intermission
to the date of finding that indictment; and that the offense charged in both indictments
was one and the same offense and not divisible, and that he had suffered the full
penalty prescribed therefor. To this plea the district attorney demurred. The
court sustained the demurrer, and the petitioner, being convicted on the plea
of not guilty, was sentenced to be imprisoned in the penitentiary for the term
of 125 days. The sentence was as follows, to-wit: 'The defendant, with his counsel,
came into court. Defendant was then asked if he had any legal cause to show why
judgment should not now 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 rendered its judgment that whereas, said defendant, Hans Nielsen, having
been duly convicted in this court of the crime of adultery, it is therefore ordered,
adjudged, and decreed that the said Hans Nielsen be imprisoned in the penitentiary
of the territory of Utah, at the county of Salt Lake, for the term of one hundred
and twenty-five days. You, said defendant, Hans Nielsen, are rendered into the
custody of the United States marshal for the territory of Utah, to be by him delivered
into the custody of the warden or other proper officer of said penitentiary. You,
said warden or other proper officer of said penitentiary, are hereby commanded
to receive of and from said *179 United States marshal him, the said Hans
Nielsen, convicted and sentenced as aforesaid, and him, the said Hans Nielsen,
to safely keep and imprison in said penitentiary for the term as in this judgment
ordered and specified.' Thereupon, being delivered into the custody of the marshal,
the defendant below, **674 on the next day, or day following, during the
same term of the court, presented to the court his petition for a habeas corpus,
setting forth the indictments, proceedings, and judgments in both cases, and his
suffering of the sentence on the first indictment, and claiming that the court
had no jurisdiction to pass judgment against him upon more than one of the indictments,
and that he was being punished twice for one and the same offense. As before stated,
the court, being of opinion that if the writ were granted he could not be discharged
from custody, refused his application. That order is appealed from. *182
The first question to be considered, therefore, is whether, if the petitioner's
position was true, that he had been convicted twice for the same offense, and
that the court erred in its decision, he could have relief by habeas corpus.
The objection to the remedy of habeas corpus of course would be that there
was in force a regular judgment of conviction, which could not be questioned collaterally,
as it would have to be on habeas corpus. But there are exceptions to this
rule which have more than once been acted upon by this court. It is firmly established
that if the court which renders a judgment has not jurisdiction to render it,
either because the proceedings or the law under which they are taken are unconstitutional,
or for any other reason, the judgment is void, and may be questioned collaterally,
and a defendant who is imprisoned under and by virtue of it may be discharged
from custody on habeas corpus. This was so decided in the cases of Ex parte
Lange, 18 Wall. 163, and Ex parte Siebold, 100 U. S. 371, and in several other
cases referred to therein. In the case of In re Snow, 120 U. S. 274, 7 Sup. Ct.
Rep. 556, we held that only one indictment and conviction of the crime of unlawful
cohabitation, under the act of 1882, could be had for the time preceding the finding
of the indictment, because the crime was a continuous one, and was *183
but a single crime until prosecuted; that a second conviction and punishment of
the same crime for any part of said period was an excess of authority on the part
of the district court of Utah; and that a habeas corpus would lie for the
discharge of the defendant imprisoned on such conviction. In that case the
habeas corpus was applied for at a term subsequent to that at which the judgment
was rendered; but we did not regard this circumstance as sufficient to prevent
the prisoner from having his remedy by that writ. It is true that in the Case
of Snow we laid emphasis on the fact that the double conviction for the same offense
appeared on the face of the judgment; but if it appears in the indictment, or
anywhere else in the record, (of which the judgment is only a part,) it is sufficient.
In the present case it appeared on the record in the plea of autrefois convict,
which was admitted to be true by the demurrer of the government. We think that
this was sufficient. It was laid down by this court in Re Coy, 127 U. S. 731,
758, 8 Sup. Ct. Rep. 1263, that the power of congress to pass a statute under
which a prisoner is held in custody may be inquired into under a writ of habeas
corpus as affecting the jurisdiction of the court which ordered his imprisonment;
and the court, speaking by Mr. Justice MILLER, adds: 'And if their want of power
appears on the face of the record of his condemnation, whether in the indictment
or elsewhere, the court which has authority to issue the writ is bound to release
him;' referring to Ex parte Siebold, 100 U. S. 371. In the present case, it is
true, the ground for the habeas corpus was, not the invalidity of an act
of congress under which the defendant was indicted, but a second prosecution and
trial for the same offense, contrary to an express provision of the constitution;
in other words, a constitutional immunity of the defendant was violated by the
second trial and judgment. It is difficult to see why a conviction and punishment
under an unconstitutional law is more violative of a person's constitutional rights
than an unconstitutional conviction and punishment under a valid law. In the first
case, it is true, the court has no authority to take cognizance of the case; but
in the other it has no authority to render judgment *184 against the defendant.
This was the case in Ex parte Lange, where the court had authority to hear and
determine the case, but we held that it had no authority to give the judgment
it did. It was the same in the Case of Snow; the court had authority over the
case, but we held that it had no authority to give judgment against the prisoner.
He was protected by a constitutional provision, securing to him a fundamental
right. It was not a case of mere error in law, but a case of denying to a person
a constitutional right. And where such a case appears on the record the party
is entitled to be discharged from imprisonment. The distinction between the case
of a mere error in law, and of one in which the judgment is void, is pointed out
in Ex parte Siebold, 100 U. S. 371, 375, and is illustrated by the case of Ex
parte Parks as compared with the Cases of Lange and Snow. In the Case of Parks
there was an alleged misconstruction of a statute. We held that to be a mere error
in law, the court having jurisdiction of the case. In the Cases of Lange and Snow
there was a denial or invasion of a constitutional right. A party is entitled
to a habeas corpus, not merely where the court is without jurisdiction
of the cause, but where it has no constitutional authority or power to condemn
the prisoner. As said by Chief Baron GILBERT, in a passage quoted in Ex parte
Parks, 93 U. S. 18, 22, 'If the commitment be against law, as being made by one
who had no jurisdiction of the cause, or for a matter for which by law no man
ought to be punished, the court are to discharge.' This was said in reference
to cases which had gone to conviction and sentence. Lord Hale laid down the same
doctrine in almost the same words. 2 Hale, P. C. 144. **675 And why should
not such a rule prevail in favorem libertatis? If we have seemed to hold
the contrary in any case, it has been from inadvertence. The law could hardly
be stated with more categorical accuracy than it is in the opening sentence of
Ex parte Wilson, 114 U. S. 417, 420, 5 Sup. Ct. Rep. 935, where Mr. Justice GRAY,
speaking for the court, said: 'It is well settled by a series of decisions that
this court, having no jurisdiction of criminal cases by writ of error or appeal,
cannot discharge on habeas corpus a person imprisoned UNDER *185
THE SENTENCE OF A CIRCUIT OR DISTRIct court in a criminal case, unless the sentence
exceeds the jurisdiction of that court, or there is no authority to hold him under
the sentence.' This proposition, it is true, relates to theower of this court
to discharge on habeas corpus persons sentenced by the circuit and district
courts; but, with regard to the power of discharging on habeas corpus it
is generally true that after conviction and sentence the writ only lies when the
sentence exceeds the jurisdiction of the court, or there is no authority to hold
the defendant under it. In the present case the sentence given was beyond the
jurisdiction of the court, because it was against an express provision of the
constitution which bounds and limits all jurisdiction. Being of opinion, therefore,
that habeas corpus was a proper remedy for the petitioner, if the crime
of adultery with which he wsa charged was included in the crime of unlawful cohabitation
for which he was convicted and punished, that question is now to be considered. We
will revert for a moment to the case of In re Snow. Three crimes of unlawful cohabitation
were charged against Snow in three indictments, the crimes being laid continuous
with each other,--one during the year 1883, one during 1884, and one during 1885.
We held that they constituted but a single crime. In the present case there were
two indictments; one for unlawful cohabitation with two women down to May 13,
1888, and the other for adultery with one of the women the following day, May
14, 1888. If the unlawful cohabitation continued after the 13th of May, and if
the adultery was only a part of and incident to it, then an indictment for the
adultery was no more admissible, after conviction of the unlawful cohabitation,
than a second indictment for unlawful cohabitation would have been; and for the
very good reason that the first indictment covered all continuous unlawful cohabitation
down to the time it was found. The case would then be exactly the same as that
of In re Snow. By way of illustrating the argument we quote from the opinion in
that case. Mr. Justice BLATCHFORD, delivering the opinion of the court, said:
'The offense of cohabitation, in the sense of this *186 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, 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. * * * On the same principle there might have
been an indictment covering each of the thirty-five months, with imprisonment
for seventeen years and a half, and fines amounting to $10,500, or even an indictment
covering every week. * * * 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.' These views were established
by an examination of many authorities. Now, the petitioner, in his plea, averred
in terms that the unlawful cohabitation with which he was charged in the first
indictment continued without intermission up to the time of finding that indictment,
covering the time within which the adultery was laid in the second indictment.
He also averred that the two indictments were found against him upon the testimony
of the same witnesses, on one oath and one examination as to the alleged offense,
covering the entire time specified in both indictments. This plea was demurred
to by the prosecution, and the demurrer was sustained. The averments of the plea,
therefore, must be taken as true. And assuming them to be true, can it be doubted
that the adultery charged *187 in the second indictment was an incident
and part of the unlawful cohabitation? We have no doubt of it. True, in the Case
of Snow we held that it was not necessary to prove sexual intercourse in order
to make out a case of unlawful cohabitation; that living together as man and wife
was sufficient; but this was only because proof of sexual intercourse would have
been merely cumulative evidence of the fact. Living together as man and wife is
what we decided was meant by unlawful cohabitation under the statute. Of course,
that includes sexual intercourse. And this was the integral part of the adultery
charged in the second indictment, and was covered by and included in the first
indictment and conviction. The case was the same as if the first indictment had
in terms laid the unlawful cohabitation for the whole period preceding the finding
of the indictment. The conviction on that indictment was in law a conviction
**676 of a crime which was continuous, extending over the whole period, including
the time when the adultery was alleged to have been committed. The petitioner's
sentence, and the punishment he underwent on the first indictment, was for that
entire, continuous crime. It included the adultery charged. To convict and punish
him for that also was a second conviction and punishment for the same offense.
Whether an acquittal would have had the same effect to bar the second indictment
is a different question, on which we express no opinion. We are satisfied that
a conviction was a good bar, and that the court was wrong in overruling it. We
think so because the material part of the adultery charged was comprised within
the unlawful cohabitation of which the petitioner was already convicted, and for
which he had suffered punishment. The
conclusion we have reached is in accord with a proposition laid down by the supreme
judicial court of Massachusetts in the case of Morey v. Com., 108 Mass. 433, 435.
The court there says, by Mr. Justice GRAY: 'A conviction of being a common seller
of intoxicating liquors has been held to bar a prosecution for a single sale of
such liquors within the same time, upon the ground that the lesser offense, which
is fully proved by evidence of the mere fact of unlawfully making *188
a sale, is merged in the greater offense; but an acquittal of the offense of being
a common seller does not have the like effect. Com. v. Jenks, 1 Gray, 490, 492;
Com. v. Hudson, 14 Gray, 11; Com. v. Mead, 10 Allen, 396.' While this proposition
accords so nearly with our own views, it is but fair to say that the decision
in Morey v. Com. is the principal one relied on by the government to sustain the
action of the district court of Utah in this case. Morey was charged under a statute
in one indictment with lewdly and lasciviously associating and cohabiting with
a certain female to whom he was not married; and in another indictment he was
charged with committing adultery with the same person on certain days within the
period of the alleged cohabitation. The court held that a conviction on the first
indictment was no bar to the second, although proof of the same acts of unlawful
intercourse was introduced on both trials. The ground of the decision was that
the evidence required to support the two indictments was not the same. The court
said: 'A conviction or acquittal upon one indictment is no bar to a subsequent
conviction and sentence upon another, unless the evidence required to support
a conviction upon one of them would have been sufficient to warrant a conviction
upon the other. The test is not whether the defendant has already been tried for
the same act, but whether he has been put in jeopardy for the same offense. A
single act may be an offense against two statutes; and, if each statute requires
proof of an additional fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from prosecution and punishment
under the other.' Page 434. We think, however, that that case is distinguishable
from the present. The crime of loose and lascivious association and cohabitation
did not necessarily imply sexual intercourse, like that of living together as
man and wife, though strongly presumptive of it. But be that as it may, it seems
to us very clear that where, as in this case, a person has been tried and convicted
for a crime which has various incidents included in it, he cannot be a second
time tried for one of those incidents without being twice put in jeopardy for
the same offense. *189 It may be contended that adultery is not an incident
of unlawful cohabitation, because marriage of one of the parties must be strictly
proved. To this it may be answered that while this is true, the other ingredient
(which is an incident of unlawful cohabitation) is an essential and principal
ingredient of adultery; and, though marriage need not be strictly proved on a
charge of unlawful cohabitation, yet it is well known that the statute of 1882
was aimed against polygamy, or the having of two or more wives; and it is construed
by this court as requiring, in order to obtain a conviction under it, that the
parties should live together as husband and wives. It
is familiar learning that there are many cases in which a conviction or an acquittal
of a greater crime is a bar to a subsequent prosecution for a lesser one. In Mr.
Wharton's Treatise on Criminal Law, (volume 1, § 560,) the rule is stated as follows,
to-wit: 'An acquittal or conviction for a greater offense is a bar to a subsequent
indictment for a minor offense included in the former, wherever, under the indictment
for the greater offense, the defendant could have been convicted of the less;'
and he instances several cases in which the rule applies; for example, 'an acquittal
on an indictment for robbery, burglary, and larceny, may be pleaded to an indictment
for larceny of the same goods, because upon the former indictment the defendant
might have been convicted of larceny.' 'If one be indicted for murder, and acquitted,
he cannot be again indicted for manslaughter.' If a party charged with the crime
of murder, committed in the perpetration of a burglary, be generally acquitted
on that indictment, he cannot afterwards be convicted of a burglary with violence,
under 7 Wm. IV., and 1 Vict. c. 86, § 2, as the general acquittal on the charge
of murder would be an answer to that part of the indictment containing the allegation
of violence.' 'An acquittal for seduction is a bar to an indictment for fornication
with the same prosecutrix.' 'On the same principle, in those states where, on
an indictment for adultery, there could be a conviction for fornication, an acquittal
of adultery is a bar to a prosecution for fornication.' It will be observed that
all these instances are supposed cases of acquittal; and, in order that an acquittal
may be a bar *190 to a subsequent indictment for the lesser crime, it would
seem to be essential **677 that a conviction of such crime might have been
had under the indictment for the greater. If a conviction might have been had,
and was not, there was an implied acquittal. But where a conviction for a less
crime cannot be had under an indictment for a greater which includes it, there
it is plain that while an acquittal would not or might not be a bar, a conviction
of the greater crime would involve the lesser also, and would be a bar; and then
the proposition first above quoted from the opinion in Morey v. Com. would apply.
Thus, in the case of State v. Cooper, 13 N. J. Law, 361, where the defendant was
first indicted and convicted of arson, and was afterwards indicted for the murder
of a man burnt and killed in the fire produced by the arson, the supreme court
of New Jersey held that the conviction of the arson was a bar to the indictment
for murder, which was the result of the arson. So, in State v. Nutt, 28 Vt. 598,
where a person was convicted of being a common seller of liquor, it was held that
he could not afterwards be prosecuted for a single act of selling within the same
period. 'If,' said the court, 'the government see fit to go for the offense of
being 'a common seller,' and the respondent is adjudged guilty, it must, in a
certain sense, be considered as a merger of all the distinct acts of sale up to
the filing of the complaint, and the respondent can be punished but for one offense.'
Whereas, in Com. v. Hudson, 14 Gray, 11, after an acquittal as a common seller,
it was held that the defendant might be indicted for a single act of selling during
the same period. See 1 Bish. Crim. Law, (5th Ed.) § 1054, etc. The books are full
of cases that bear more or less upon the subject we are discussing. As our object
is simply to decide the case before us, and not to write a general treatise, we
content ourselves, in addition to what has already been said, with simply announcing
our conclusion, which is, that the conviction of the petitioner of the crime of
unlawful cohabitation was a bar to his subsequent prosecution for the crime of
adultery; that the court was without authority to give judgment and sentence in
the latter case, and should have vacated *191 and set aside the same when
the petitioner applied for a habeas corpus; and that the writ should have
been granted, and the petitioner discharged. The judgment of the district court
is reversed, and the cause remanded with directions to issue a habeas corpus
as prayed for by the petitioner, and proceed thereon according to law. Copr.
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