98 U.S. (8 Otto) 145 (1878)
George Reynolds, a longtime member of the Church of Jesus Christ of Latter-Day Saints, was indicted in the District Court of the third judicial district of the Territory of Utah for bigamy after entering a second marriage to Amelia Jane Schofield while his first wife remained alive.1
Reynolds had obtained permission from recognized church authorities to contract the polygamous marriage.2 He and other male church members believed the practice was a religious duty enjoined by divine revelation to Joseph Smith.3 Refusal would bring damnation when circumstances permitted.4
The grand jury that returned the indictment consisted of fifteen persons under a territorial statute.5 This differed from the sixteen to twenty-three persons required by federal statute for United States circuit and district courts.6 During voir dire, the trial court overruled Reynolds's challenges for cause to prospective jurors including Charles Read who stated they had formed opinions about the case.7 The court sustained government challenges to other prospective jurors who were or had been living in polygamy.8
At trial the prosecution offered the transcript of testimony given by Amelia Jane Schofield at an earlier prosecution of Reynolds for the same offense under a different indictment.9 The government showed that subpoenas were served at Reynolds's house.10 An officer was told the witness was not at home.11 Reynolds declined to disclose her location.12 A later subpoena with the correct name also failed to locate her.13 Reynolds had been present and able to cross-examine at the prior trial but offered no explanation for her absence.14
Reynolds requested a jury instruction that he must be acquitted if the jury found he acted in the sincere belief that the second marriage fulfilled a religious duty.15 The court refused and instead instructed that religious belief could not excuse a knowing violation of the criminal law.16 The court further instructed the jury to consider the consequences of polygamy for innocent women and children.17 Reynolds was convicted and the case reached the Supreme Court of the United States on writ of error.18
Whether the indictment was bad because found by a grand jury of less than sixteen persons?19
Territorial district courts possess jurisdiction over federal offenses equivalent to that of United States circuit and district courts.20 They remain territorial courts rather than federal courts.21 Revised Statutes section 808 fixes grand-jury size at sixteen to twenty-three persons for federal circuit and district courts. It does not govern territorial courts. Territorial courts may follow local statutes limiting grand juries to fifteen persons.
No. The grand jury that indicted Reynolds consisted of fifteen persons pursuant to the territorial statute. The District Court of the third judicial district of the Territory of Utah is a territorial court invested with federal-question jurisdiction but is not a circuit or district court of the United States.22 Because section 808 applies only to the latter courts, the territorial fifteen-person limit controlled the composition of the grand jury.23
The indictment was not bad.24
Whether the challenges of particular petit jurors by the accused were improperly overruled?25
A juror who has formed a fixed and decided opinion on the merits that will not yield to the evidence is incompetent.26 A mere hypothetical or impressionable opinion does not disqualify the juror.27 The trial court's finding on the nature and strength of any opinion is entitled to deference on review unless manifest error appears.28
No. Reynolds challenged jurors including Charles Read who stated they believed they had formed an opinion but did not think it would influence their verdict.29 The trial court found these opinions hypothetical rather than fixed.30 The evidence presented on voir dire showed only light impressions that could yield to testimony.31 The trial court's determination that no manifest presumption of partiality existed must stand.32
The challenges were not improperly overruled.33
Whether the challenges of particular other jurors by the government were improperly sustained?34
No. The government challenged jurors who were or had been living in polygamy.37 Such jurors could not enter the box free from bias and prejudice in a prosecution for bigamy.38 Whether the challenges were sustained in form for cause or for favor is immaterial because the jurors were properly excluded as incompetent.39
The challenges were not improperly sustained.40
Whether the testimony of Amelia Jane Schofield, given at a former trial for the same offence, but under another indictment, was improperly admitted in evidence?41
When a witness is absent by the wrongful procurement of the accused, the constitutional right of confrontation does not bar admission of the witness's testimony from a prior trial of the same defendant on the same issues at which the defendant had an opportunity to cross-examine.42 The trial court's preliminary finding that the accused procured the absence is reviewed only for manifest error.43
No. Amelia Jane Schofield, the alleged second wife, was absent at the second trial.44 The government showed that subpoenas were served at Reynolds's house, that Reynolds told the officer he would not disclose her location, and that a later subpoena also failed to locate her.45 Reynolds, present in court, offered no explanation.46 The trial court found sufficient proof of procurement, and that finding is not manifestly erroneous.47
The testimony was not improperly admitted.48
Related opinions on this issue
Justice Field concurred with the majority of the court on all points decided except the admission of Amelia Jane Schofield's former testimony.49 He concluded that the prosecution failed to lay a sufficient foundation for introducing the transcript.50 In his view the authorities cited by the Chief Justice establish the exact reverse proposition that the evidence should have been excluded.51
Field therefore dissented from the ruling that permitted the secondary evidence.52
Whether the accused should have been acquitted if he married the second time because he believed it to be his religious duty?53
The First Amendment prohibits Congress from legislating against mere religious belief or opinion. It leaves Congress free to prohibit actions that violate social duties or subvert good order. A sincere religious belief that plural marriage is a duty does not excuse a knowing violation of a valid criminal statute forbidding bigamy in the territories.54
No. Reynolds proved he was a member of the Mormon Church, believed polygamy was a religious duty enjoined by revelation, and obtained church permission for the second marriage.55 The trial court correctly refused his requested instruction and instead charged that religious belief does not excuse a deliberate second marriage while the first wife lives.56 The statute validly regulates conduct, and Reynolds knowingly performed every act necessary to constitute the crime.57
The accused should not have been acquitted on that ground.58
Whether the court erred in that part of the charge which directed the attention of the jury to the consequences of polygamy?59
No. The court instructed the jury to consider the consequences of polygamy for innocent women and children.62 The instruction reminded the jury of the legislative purpose behind the bigamy statute and of their duty to decide the case on the evidence.63 It contained no appeal to passion or prejudice and served to focus rather than divert the jury's attention.64
The court did not err in that part of the charge.65