the time laid in the indictment he has been accustomed to go out to the farm in the evenings from 50 to 100 times each year, returning to town generally on the following mornings. In fact, his general course and conduct towards his various families have not been in any manner different during the last two or three years from what it was prior to the passage of the Edmunds law, except that he has made a pretense of living with his legal wife since the passage of that act. But it clearly appears from the evidence that it is all a pretense, and nothing more. He did not in fact do so. Ꭺ man cannot live in the promiscuous style of the defendant, with three different women, and yet expect to escape arrest and punishment merely upon a pretense or claim that he is obeying the law. He must lay aside all indicia of the crime. He must act in good faith, and separate himself entirely from his polygamous women. A pretense of doing that which in fact he does not do will be of no avail. His acts must correspond with his claim or pretense. Where there is an honest effort in this class of cases, as in others, to conform to the law, it is not difficult to succeed.

The witnesses for the prosecution in this class of cases are generally of the unwilling character, and mostly drawn from the households of the accused. The counsel for the defendant seems to think that the jury must accept all that such witnesses say of a character favorable to the defendant, and must discard or give less prominence to all that may be of a contrary character. It is the duty of the jury to weigh all of the evidence, and discard only such as upon their oath they cannot accept as true. They are authorized to take into consideration the relationship between the witnesses and the accused, and also their manner of testifying. When the jury find that such witnesses have been drilled to answer in line, and not to allow perjury to be a stumbling block in their efforts to save the accused from conviction, it is impossible for them to give the testimony of such witnesses in his favor as much weight as they otherwise would have done. From the inconsistencies and contradictions of such witnesses, and from the plain counter-statements of other and disinterested witnesses, the truth usually appears. Important

truths are sometimes evolved from a witness' testimony when he does not intend it. He is the unconscious instrument of proving that which he is purposing to conceal. He does not always know the bearing of the different parts of his testimony. We think that the evidence fully justified the verdict, and the verdict was not contrary to law.

2. It is assigned as error that the court below allowed evidence to go to the jury tending to show cohabitation of defendant with the plural wives prior to the passage of the Edmunds law, and prior to the time laid in the indictment, and also instructed the jury to consider such evidence. The evidence thus objected to had reference to the marriages of the defendant with these women, and the continuance of marital relations. Such evidence may not always be necessary, but in the present case it was entirely proper. It was not introduced to show acts or conduct for which the party was liable, or to show a cohabitation for which the defendant would be liable under this indictment. It was merely to illustrate and explain the evidence as to what took place during the time laid in the indictment. The instructions of the court clearly told the jury that the cohabitation necessary upon which to base a verdict was that within the time covered by the indictment.

3. It is assigned for error that the court made remarks during the trial which were unnecessary, and tended to prejudice the jury against defendant. The remarks objected to were used by the court in ruling upon the introduction. of evidence. It is an almost universal rule, and one hoary with age, for courts to give their reasons for their rulings, and especially is this so where the questions are important. It would hardly be satisfactory to counsel if the court failed in this respect on points of importance, and the court would often be subjected to adverse criticism for not doing so. The giving of reasons is often an unavoidable necessity, to prevent the court from being misunderstood, and also to save time. The remarks are not made to nor for the jury, although in their presence; but that is not sufficient ground for their exclusion. If the court should inadvertently say something that might be con

strued as injurious in case the jury should regard it, the counsel should call attention to the matter, and request the court to correct it in the charge to the jury.

4. The refusal of the court to exclude the testimony of the witness Westfall, as to defendant's passing Westfall's house, on a public road, one and a half mile distant from the place where the plural wives were known to live, is assigned for error. It is urged that he was too far removed for his testimony to be of value. Between the house of the witness and that where the polygamous women lived the country was an open prairie. The witness says that he has seen the defendant going past his house, and along the highway, out to defendant's farm, in the evenings, and returning in the mornings, 50 to 100 times a year, within the time laid in the indictment; that he has seen him go through the gate, and into the corral; that he had seen him drive his cattle out there frequently. The "remoteness" of the witness from the dwelling where the polygamous wives lived was a question for the consideration of the jury in weighing the testimony. It does not go to its competency.

5. It is assigned as error that the court told the jury that "the law aims at the wrongful example of an apparent as well as an actual continuance of the polygamous relation, without reference to what actually occurs with his plural or polygamous wives." Whether the defendant was in fact living with these women was not necessary to be shown. The jury were authorized from the facts and circumstances proven, to conclude that such was the fact. A man cannot display all the indicia of a married life, and yet plead its non-existence successfully. He must put away the evidences. In trials for murder, it is not infrequent that no witness can be produced who saw the killing, but facts and circumstances may be shown which point clearly to the guilty party, and from the certainty of his guilt there is no escape. Men are often executed when the conviction is based wholly upon circumstantial evidence. These crimes against chastity and the home are of no more sacred character than those against life. Upon the same point the supreme court of the United States

has said: "It was such offense that section 3 of the act was intended to reach-the exhibition of all the indicia of a marriage; a household and a family twice repeated." Cannon v. U. S., 116 U. S., 55. The district court did not go beyond the interpretation given by the supreme court of the United States, and we see no error in that part of the charge of the district court.

6. It is assigned as error that the court below, in its charge to the jury, assumed that the name by which the plural wives may be known is a part of the offense. There is no such assumption anywhere in the charge. The court simply refers to the name borne by the polygamous women as one among the many marks of the guilt of the defendant. Where a woman is recognized in a family by the name of a man, it is indicative that she is something more than a stranger; and if connected with the other facts of his having married the woman, and continues to treat her as a wife, etc., it is proper for the jury to take it into consideration.

7. The following extract from the charge of the court is assigned as error: "But, when you come to the proof of cohabitation with the illegal wife, it requires actual proof of the fact. The presumption would be against it, to commence with. The presumptions of law are in favor of innocence, and until some evidence has been given tending to show that these acts of cohabitation on his part, the presumption would be he didn't do that; but where it is shown these acts of cohabitation have taken place with the plural wives, if shown beyond a reasonable doubt, then it is cohabitation within the meaning of the law."

It is claimed that this part of the charge "assumes that the instant that some evidence has been given tending to show his guilt the presumption of innocence vanishes and is lost." We do not think that the language used conveys any such idea. Had the latter part of the last sentence. been omitted, there might have been some basis for the position of the counsel for the appellant; but the latter clause completely obliterates it. The language of the charge, taken together, conveys no idea that the presumption of innocence is changed or overthrown by any evi

1

dence less than that which proves the guilt of the defendant beyond a reasonable doubt.

8. It is objected that the court erred in telling the jury that they were not bound to believe the testimony of any witness as to a state of facts testified to, but could believe or disbelieve any witness, etc. The language of the court does not convey the impression that the jury could will.. fully or captiously refuse to accept the testimony of a witness; but, on the contrary, that they should weigh all of the evidence, and seek the truth. There might be to the language used an intimation that probably some one had sworn falsely, and yet the instruction be entirely proper. There were statements of the witnesses that were contradictory, and some one had evidently been mistaken or sworn falsely. In either case they had to reject some of the testimony. The charge of the court simply told them that they had the right to do so. The court did not tell the jury what testimony to reject, and the language used was in no sense an invasion of the province of the jury. The only apparently obnoxious language of the court was the closing part of the sentence, namely, "or did any of the acts I have specified here as cohabitation with these women. If he has, he is guilty; if not, he is not guilty." We have frequently called attention to the fact that an isolated extract from a charge to a jury cannot be considered by itself, but that the whole charge must be taken together. The words just quoted might, if taken alone, be considered objectionable; but, when taken in connection with the other parts of the charge, their meaning is apparent. The thought conveyed, in the light of the context, is that the jury could not find the defendant guilty unless there was proof of facts which the court had said were sufficient to constitute the cohabitation. That was the fair construction of the language used, and it could not well have been understood otherwise by the jury.

9. It is further claimed that the charge, as a whole, conveyed to the minds of the jurors that the fact that at the passage of the Edmunds law the defendant was a polyg amist was of the essence of the offense. It is needless to say that nothing of the kind anywhere appears in the