
    HESTER HENDERSON, Ex Parte.
    Privilege op Witness — Husband and Wipe — Under Section 1, Edmunds-Tucker law, 24 Stat. 635, providing “that in any proceeding before a grand jury, etc., in any prosecution for bigamy, polygamy or unlawful cohabitation, etc., the lawful husband dr wife of the person accused shall be a competent witness and may be called, but he or she shall not be compelled to testify, etc., without the consent of the husband or wife as the case may be,” etc., the privilege is a personal privilege of such witness called.
    Id. Id. — Grand Jury — Contempt—In an investigation before the grand jury, a witness answered that she was the lawful wife of accused, that she was married to accused on a certain day, thereupon she was asked whether the accused on the same day did not marry another' woman, which question witness refused to answer, and on being brought into court again declined to answer, whereupon witness was adjudged guilty of contempt; hélá on habeas corpus that the question asked was material in order to determine the validity of witness’ claim of privilege and that an answer might be enforced.
    Hearing upon tbe Return of a Writ of habeas corpus original in tbe Supreme Court of Utab Territory. Tbe facts are stated in tbe opinion of tbe Court.
    
      
      Messrs. Sheelcs and Raiolins and Messrs. Richards and Moyle for tbe petitioner;
    
      Mr. Ogden Hiles, Assistant U. S. Attorney, contra.
    
   BoreMAN, J.:

Tbe petitioner was adjudged guilty of contempt, and committed to prison, for refusing to answer a question propounded to her by tbe grand jury of tbe District Court at Ogden, where sbe was a;witness. Tbe grand jury bad under investigation a charge of polygamy against one John Hendrickson, and bad received testimony tending to show that said John Hendrickson bad married two women on tbe 1st day of January, 1885, at tbe same time, by tbe same ceremony, or on tbe same day, namely, said Hester Hend-rickson and another woman named Mary Lloyd. When tbe petitioner bad been sworn as a witness before the grand jury, sbe claimed that sbe was tbe lawful wife of tbe said John Hendrickson, and that as such she was exempt from giving testimony. Upon inquiry by tbe grand jury touching her claim of exemption, sbe testified, without objection, that sbe was married to said John Hendrickson on tbe 1st day of January, 1885. Further, with a view to ascertain whether in fact she was tbe lawful wife of said John Hendrickson, as sbe claimed, tbe said jury asked whether John Hendrickson, on tbe same day that sbe married him, married another woman named Mary Lloyd. Sbe declined to answer this question, and tbe matter was referred to tbe Court. Tbe grand jury and tbe witness were by tbe Court instructed that it was tbe duty of tbe witness to answer the question, and to answer all questions put by tbe grand jury touching tbe inquiry as to whether she really was the legal wife or not of said John Hendrickson, and that her testi- ■ mony could not be used by the grand jury against said John Hendrickson if it should appear that she was the lawful wife ; that the inquiry was made with a view merely to ascertain whether she was such legal wife or not. Upon returning to the grand jury room she again declined to answer tbe question, and the matter was again referred to . the Court by the grand jury. The witness was apked by the Court, in the presence of tbe grand jury, whether she would answer the question. She replied that she would not, and would not obey the order of the Court requiring her to do so. The Court adjudged her guilty of contempt, and committed her to prison; there to remain until she should answer the question, or be legally discharged.

The matter for our examination is whether the Court had the authority to remit to the grand jury the question as to the competency of the petitioner as a witness, and this question depended upon the proof of a fact. If she were the lawful wife of said John Hendrickson she was prima facie a competent witness under the first section of what is commonly known as the Edmunds-Tucker law of Congress. 24 Stat., 635, Comp. Laws Utah 1888, p. 114. But by the same law it appears that if she were the lawful wife she could not, in a case against her husband, be compelled to testify against her consent. In order to ascertain whether she was the lawful wife it was necessary to ascertain whether she was the first wife. That was clearly a question of fact. The question which the grand jury asked the witness plainly showed that the object of the inquiry was whether really the witness was the first wife, as she claimed to be. If she were not, her claim of exemption from testifying would fall. Before the grand jury could require her to testify in the case against John Hendrickson they must be satisfied that she was not the first wife. The question of her competency was one of mixed law .and fact, but not a question of doubtful law — such a one as they would need the advice of the Court upon. The grand juries are, and always have been, bodies of extensive powers. Their examinations are in secret, and these extensive powers are given to them that they may be enabled to privately and thoroughly search out the truth in all cases. They are given, to some extent at least, powers to pass upon legal questions, under the direction of the Court. Our Territorial Statute says: “The grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence.” 2 Comp. Laws 1888, p. 584, par. 4914. The grand juries are thus to be guided by the general rules of evidence, subject only to the supervisory charge and control o£ tbe Court. If a witness refuses to answer any question, tbe grand jury cannot enforce tbe rule requiring an answer, but must refer tbat matter to tbe Court. Tbe Court can tben only inquire wbetber tbe question be a proper one. Here tbe inquiry was as to tbe competency of tbe witness. Tbe question asked by tbe grand jury,' and wbicb tbe witness refused to answer, would bave aided tbe grand jury very materially in ascertaining as a fact wbetber ber claim of being tbe first wife was valid or not. If sbe bad answered tbat sbe knew of no one else having been married to tbe accused on tbat day tbe answer could bave tended to confirm ber claim of exemption, but, bad sbe made answer tbat another woman was married to tbe accused on that day, further inquiry may bave disclosed tbat such marriage was prior to ber marriage.

Sbe would tben not bave been tbe first wife, and ber claim to being tbe lawful wife would bave been invalid. Sbe bad been instructed, as bad tbe grand jury, tbat such evidence was simply to ascertain ber competency, and could not be used by tbe grand jury against tbe accused. Her claim of exemption from giving testimony could not be set up as against such a question. It was not a question as to ber giving evidence against tbe accused. Tbe investigation had not reached tbe point where ber claim of exemption could be set up. Tbe Miles Case, 103 U. S. 304, to wbicb our attention has been called, does not seem to be applicable. Tbe inquiries ib tbat case bad reference to tbe guilt or innocence of tbe defendant therein. It was evidence in tbe case against him. But such is not tbe fact in tbe case we are considering. Here tbe inquiries could not be used against tbe accused, but were merely to ascertain wbetber sbe was a competent witness to give testimony against him. It is true tbat in the Miles Case tbe Court' said tbat “tbe testimony of tbe second wife to prove tbe only controverted issue in tbe case, namely, tbe first marriage, cannot be given to tbe jury on tbe pretext that its purpose is to establish ber competency.” Tbat rule was laid down under a former Territorial Statute wbicb said : “A husband shall' not be a witness for or against bis wife, nor a wife a witness for or against ber husband.” Comp. Laws Utah 1876, § 1604. Under that statute the Court in the Miles Case recognized that the wife was prima facie; incompetent. The Court said in that case : “ "Witnesses who are prima facie competent, but whose competency is disputed, are allowed to give evidence on their voir dire to the court upon some collateral issue on which the'ir competency depends, but the testimony of. a witness who is prima facie incompetent cannot be given to the jury upon the very issue in the case, in order to establish his competency, and at the same time prove the issue.” Our local statute then absolutely disqualified the wife, and the accused could object to her testifying. But the later act of Congress — the Edmunds-Tucker act above referred to— has changed this completely. The accused cannot raise any valid objection, but as to him she is a competent witness. The exemption is wholly a personal privilege of the witness. The Edmunds-Tucker law reads as follows: “ Section 1. That in any proceeding or examination before a grand jury, a judge, justice or a United States commissioner, or a court, in any prosecution for bigamy, polygamy or unlawful cohabitation, under any statute of the United States, the lawful husband or wife of the person accused shall be a competent witness, and may be called, but he or she shall not be compelled to testify in such proceeding, examination or prosecution without the consent of the husband or wife, as the case may be,” etc. 24 Stat. 685. 1 Comp. Laws Utah, pp. 114, 115, § 1. Had tins statute been in existence when the Miles Case was decided, it is evident that the ruling of the Court would have been different, as the first wife is under this latter statute a competent witness. We see no reason to doubt the authority of the grand jury to make the inquiry as to the competency of the witness when such competency depended wholly upon the proof of a fact. That fact the jury had the right to know in order to ascertain whether the witness was the lawful wife of the accused, notwithstanding the general rule that the competency of a witness is a question ■ for the Court. It is not necessarily for the Court where it depends upon a fact. The ascertainment of that fact decides the question. The simple claim of the witness that she was the lawful wife is not the proof of a fact and is not conclusive. "We think the question asked the petitioner by the grand jury was a proper one, and the District Court had full authority to require her to answer. The prayer of the petitioner for her discharge is denied, and she is remanded to the custody of the marshal

Sandeord, C. J.,

(concurring):

The petitioner herein claimed to be the wife of John Hendrickson, and as such not to be required or compelled to testify before the grand jury against him. The grand jury had the right to ascertain this primal fact. When this had been clearly established, then, and not before, could the petitioner successfully insist on her exemption. The question, “Did Hendrickson marry Mary Lloyd the same day he married you?” was directed to this question of fact. If it was shown to the grand jury that he had married the same day another woman before he married the petitioner, she was not his legal wife, and therefore not exempt from testifying. When all the facts had been adduced before them, then, if there was still a claim to the exemption, it was a question for the court to decide whether, in view of all the facts, she was the legal wife of the accused. If the question asked had not been connected with the exemption which the petitioner claimed, a different case would have been presented. The grand jury may not override the statute allowing the exemption, but they are authorized to ascertain how much weight and substance there was to be given to her declaration that she was the legal wife. The surrounding circumstances, which go to show her legal marriage, were proper and material. The jury was not to be estopped from the further examination by the assertion that she was legally married. It was incumbent on the petitioner to show that she was, under the law of Congress, the first wife of the accused. And the question proposed was sufficient to bring out the priority of her marriage. Every question which tended to establish her right to an exemption was proper. The case is in some respects similar to the disqualification of a clergyman from disclosing any confession made to bim in Mb professional capacity. This exemption is based on tbe fact that be is a clergyman or priest. And that fact must first be established before be can be allowed or required to testify. His answer that be is a clergyman is not conclusive on the jury. They may interrogate bis claim, and by a searching examination, test it. Tbe power of a grand jury is co-extensive with, and limited by, tbe criminal jurisdiction of the court to which it is an appendage. It clearly appears that tbe District Court bad jurisdiction, and that the proceedings are regular, and valid upon their face. Tbe writ must be dismissed, and tbe prisoner remanded to the custody of the marshal, there to remain until she shall show herself willing to purge herself of the contempt for which she stands committed.  