
    UNITED STATES OF AMERICA, Respondent, v. BYRON W. BROWN, Appellant.
    Criminal Law. — Perjury.—Edmunds Law. — Defendant was indicted for perjury in swearing upon his voir dire while being examined as a grand juror, that he believed polygamy to be wrong and did not believe it was right for a man to have more than one wife at the same time. The Edmunds Law, 22 Stat. 31, prescribes as ground for challenge to juror that he believes it right for a man to have more than one wife, living and un-divorced, at the same time. The evidence showed that defendant was a member of the Mormon Church, and was preaching its doctrines, that he had lately returned from a mission and that the rightfulness of polygamy was one of the doctrines of the church. Defendant after testifying as above, explained to several witnesses that he did not believe polygamy to be right, because he went further and knew it to be right; held that under § 5392 Revised Stat. U. S. making it perjury in any one before a competent United States tribunal, to state any material matter which he does not believe to be true, the defendant was rightly convicted.
    Criminal Law. — New Trial. — Sufficiency of Evidence. — In order to justify an appellant court in reversing an order refusing a new trial, it must appear that there was an entire absence of testimony or that the evidence so clearly preponderates in favor of the prisoner as to suggest the possibility that the verdict was the result of misapprehension or partiality.
    Appeal from an order refusing a new trial and from a judgment of conviction of the district court of the first, district. The opinion states the facts.
    
      Mr. Samuel R. Thurman and Messrs. Sheelcs and Raw-lins, for the appellant.
    Cited 1 Greenleaf Ev. sec. 259; 2 Wharton Crim. Law,, sec. 1317; Wharton Crim. Ev. sec. 387; 2 Bishop Crim. Law, sec. 1044; Swartz v. Corn, 21 Am. Rep. 366; Freeman v. State, 4 Am. Crim. Rep. 470; State v. Williams, 30 Mo. 364; Or user v. State, 10 Ohio 259; People v. Evans, 40 N. Y. 1, Lawson Presump. Ev. 433, 453 and cases cited.
    
      
      Mr. George S. Peters, U. S. District Attorney, and Mr. David Evans, Assistant U. S. District Attorney, for tbe respondent.
   HENDERSON, J.:

Tbe defendant was convicted in tbe first district court at Provo of perjury committed in violation of section 5392 of tbe Bevised Statutes of tbe United States, wbicb is as follows: “Every person wbo, having taken an oatb before a competent tribunal, officer, or person, in any case in wbicb a law of tbe United States authorizes an oatb to be administered, that be will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oatb states or subscribes any material matter wbicb be does not believe to be true, is guilty of perjury.” Tbe perjury is alleged to have been committed while defendant was being examined on bis voir dire to determine bis competency to serve as a grand juror in, tbe first district court at Provo. He was examined as to such competency under section 5 of what is known as tbe “Ed-munds Law,” wbicb provides as follows: “That, in any prosecution for bigamy, polygamy, or unlawful cohabitation, it shall be sufficient cause of, challenge, to any person drawn or summoned as a juryman or talesman, that be believes it right for a man to have more than one living and undivorced wife at tbe same time; or to live in tbe practice of cohabiting with more than one woman; and any person appearing of offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existance of any such cause of challenge, and other evidence may be introduced bearing upon the question, or raised by such challenge, and this question shall be tried by the court.” And that, while being so examined, he testified that he did not believe it right for a man to have more than one living and undivorced wife at the same time, and that he did not believe it right for a man to live in the practice of cohabiting with more than one woman, and that he did not believe in polygamy or a plurality of wives. This testimony is alleged to be false, and tbe giving of it perjury. After verdict the defendant moved for a new trial upon the ground that the evidence was insufficient to support the verdict. The motion was denied, and the defendant appeals from the order denying his motion.

The only question presented is, does the evidence warrant the verdict? In the case of United States v. Harris, 19 Pac. Rep., 197; 5 Utah, 437, where the same question was presented, this Court stated the principles which shall govern, as follows: “The jury are the judges of the facts, and, in order to justify this Court in reversing the order refusing a new trial, it must appear that there was an entire absence of evidence, or that the evidence' so clearly preponderates in favor of the prisoner as to suggest the possibility that the verdict was the result of misapprehension or partiality. It is not enough that the Court might have arrived at a different result.” We are satisfied with the rule thus stated, and it only remains to test the case at bar by it. It is not contended that the evidence was sufficient to establish the fact that the defendant testified as charged in the indictment, but the claim is that the evidence failed to show that it was false. The evidence that the defendant testified as charged in the indictment consisted, among other things, of the testimony of the stenographic reporter who attended and took the evidence when the defendant was examined, and his transcribed minutes are in full in the record, from which it appears that the defendant was called as a grand juror, and was challenged by the government counsel upon the ground that he believed it right for a man to have, living and un-divorced, more than one wife at the same time, and to live in practice of cohabiting with more than one woman; whereupon he was sworn and examined, and, in an examination which covers several pages, and in which the Court and counsel for the government both participated, he repeatedly testified that he did not believe it to be right; that he believed it to be wrong, both legally and morally; and that he did not believe in polygamy. The questions were repeated to him many times over, and in various forms, and the same answer repeated. To show the falsity of this testimony, evidence was given tbat tlie defendant, a abort time before bis examination, bad advocated tbe doctrine of polygamy, and averred bis belief tbat it was right; also that be was, and for many years bad been, a member in good standing in the.Mormon Church, being “A Seventy;” tbat tbe duty of “A Seventy” was to teach and preach tbe doctrines of rhe church; tbat be had lately returned from a mission; tbat polygamy and its practice is one of tbe acknowledged doctrines of tbe church; and a number of witnesses testified tbat after be bad given tbe testimony complained of, and it bad been known, and be was questioned as to why be so testified, he explained tbat be knew it was right; tbat it was not a matter of mere belief; tbat it was absolute knowledge with him tbat it was right. Of this latter class of testimony one Brigham Taylor testified: “lam acquainted with the defendant. Have known him for several years. I am a dentist at American Fork City, engaged in my profession, and was at tbe time defendant was examined as a grand juror in February, 1888. After that defendant called at my office, passed tbe time of day, and asked me why I did not call to see him. I told him it was because what be bad done at Provo. I asked him why be answered the question tbe way be did when be was examined as a grand juror. He said tbat be did not believe only in polygamy and tbat it was right; be knew it was right. Belief with him bad become a knowledge of tbe rightfulness of polygamy.” Joseph Emprey testified : “I know th.e defendant. Live in tbe same town where be resides. He called at my bouse as a block teacher a short time after be was at Provo on the grand jury business. I bad a copy of tbe Enquirer, and bad been reading defendant’s examination as a grand juror. I asked him why he said he did not believe in polygamy and cohabitation with more than one woman, tie said because be knew it was right. It was no longer a matter of belief. Defendant is a member of tbe Mormon Church, and returned from a mission about a year and a half ago.” David Evans, who was counsel for tbe government at tbe time, defendant was examined, testified: “I am acquainted with defendant, and have been for a great many years. I examined bim as to his qualifications to sit as a grand juror in the February term, 1888. I after-wards, in May of the same year, saw him on the train between Lehi and Provo. I asked him how he could conscientiously answer that he did not believe polygamy was right. He said because it was not with him a matter of belief. He knew it was right, for he had a testimony which gave him a knowledge that it was right. There was a good deal said to the same effect. The discussion was warm, but friendly.” Lars O. Lawrence testified: “lam acquainted with defendant. I was a member of the grand jury of this court, February term, 1888. I afterwards saw defendant at Spanish Fork. Talked with him about his examination as a grand juror. He said he knew polygamy was right. He did not only believe it; he had knowledge of the fact.”

It will be seen from this statement of the testimony that evidence was given showing that defendant asserted a belief contrary to his testimony, and in accord with the doctrine of the organization of which he was an active member a short time before his testimony was given, and that, when he was approached reprovingly by members of his church and others for giving the testimony he did, he asserted a belief contrary to his testimony, and undertook to explain that it was past belief, and was actual knowledge. It is unnecessary for us to consider this claim, for he testified that he “ believed it was wrong,” and the jury were justified in finding that this claim was made in bad faith It is claimed by counsel that the testimony only shows that two inconsistent statements were made by the defendant— one under the sanction of an oath, and another without it— and that the presumption is that the statement under oath is true, and must prevail. We think there were strong circumstances shown to corroborate the statement made out of Court, and before he was examined, and that the statements made by him afterwards were in the nature of confessions. If this claim of the defendant is correct, then it would be impossible to show that the testimony is untrue, unless he had been actually guilty of polygamy or unlawful cohabitation, and such persons are disqualified from serving on juries by other provisions of tbe statute than those above quoted; but the statute goes beyond this, and disqualifies persons having a certain belief, and authorizes the Court to male inquiry under oath of persons presented or proposed as jurors as to that belief. If the testimony in this case does not fairly tend to show that the testimony given is false, it is hard to be shown, and the statutes would have no force whatever. The case was fairly and carefully given to the jury by the learned judge who presided at the trial; indeed, no complaint is made of any instruction or ruling. We think it was a fair question for the jury, and the order appealed from should be affirmed, and the cause remanded.

Sandeord, C. J., and BorEMAN, J., concurred.  