Anderson, J.:
Tbe petitioner alleges that he is a prisoner in the custody of Frank H. Dyer, United States marshal for the territory of Utah, in the penitentiary of said territory, for a criminal offense against the laws of the United States, to wit, adultery; that such confinement is by virtue of a judgment, warrant, and the proceedings of record, including three indictments against him, his arraignment thereon, and pleas thereto, respectively, and convictions thereon upon his pleas of guilty thereto. A copy of the record is in each case attached to the petition. He alleges that under the judgment in two of the cases he has been imprisoned in the penitentiary for more than sis months, [168]*168and bas paid the fines and costs adjudged against 'him therein; that he is now imprisoned under the other one of the judgments rendered against him, and that such imprisonment is illegal, for the reason that the Court had no jurisdiction to- pass judgment against him in said case; that the two judgments which he has satisfied by suffering the imprisonment, and paying the fines and costs adjudged against him therein, were both for the crime of unlawful cohabitatio'n, and that he is now imprisoned under the judgment of the Court rendered against him on the indictment for adultery; that the offense is the same offense for which he has suffered punishment under the other indictments, and that the Eachel Woodward mentioned in. the indictment for adultery, and in one of the indictments for unlawful cohabitation, is one and the same person, and that he is being punished twice for the same offense; that the Court had no jurisdiction to render judgment against him on his plea of guilty to the indictment of adultery, and that the same is void; and he prays to be discharged from imprisonment thereunder. A writ of habeas corpus was heretofore issued in the case, and the petitioner produced in court by the United States Marshal. From the exhibits attached to the petition, it appears that on the 9th day of January, 1886, the petitioner was indicted in the district court of the first judicial district for the crime of unlawful cohabitation, alleged to have been committed between August 1, 1884, and December 10, 1885, by living and cohabiting during said period of time with Barbara Maughan, Elizabeth Hull, Erdner Maughan, Maggie Nib-ley, Mary Hale Maughan, Eachael Woodward Maughan, and Francis Nibley Maughan, as his wives. This indictment is designated as No. 781. The indictment was found upon the testimony of C. L. Lowe and Thomas Grant, November 9, 1888. Petitioner was arraigned, and pleaded not guilty. November 23, 1888, petitioner changed his plea of not guilty to that of guilty. January 3, 1889, petitioner was sentenced by the Court to pay a fine of $100, and $34 costs, and to be imprisoned in the penitentiary six months, the imprisonment to commence to run from said date. It also appears that on the 23d day of November, [169]*1691888, the petitioner was indicted in said district court fox*' tbe crime of unlawful cohabitation with Barbara Maugban, Elizabeth Maughan, Margaret Maughan, Mary Maughan,. Eachael Woodward, and Euphira Maughan, by living and. cohabiting with said women as his wives from the 15 bh day of January, 1886, to the 23d day of November, 1888, This indictment is designated as No. 1,890, and was found upon the testimony of the petitioner alone, who voluntarily appeared before the grand jury at his own request and. gave testimony. On the same day he appeared in open court, was arraigned, and pleaded guilty to the indictment. January 3, 1889, petitioner was sentenced by the Court to pay a fine of $100, and $31 costs, and to be imprisoned in the penitentiary six months, the imprisonment to run from said date. It further appears that petitioner was also-indicted in said court on the 23d day of November, 1888,. for the crime of adultery alleged to have been committed on the 1st day of October, 1887, with one Eachael Woodward; that the said indictment was designated as No. 1,891, and was found on the testimony of Joseph Howell;, that on said November 23 petitioner was arraigned, and pleaded guilty to the indictment, and on the 3d day of January, 1889, was sentenced by the Court to be imprisoned in the penitentiary for two years and six months, and pay the costs of prosecution, amounting to $29.
Erom the foregoing it will be seen that the petitioner was regularly indicted, convicted, and sentenced for the-crime of adultery, upon his plea of guilty made in open court. There is no illegality appearing anywhere in the record of the case. It does not appear in which of the-three cases the plea of guilty was first entered, nor in which case judgment was first rendered. It does not appear that-the Eachael Woodward with whom petitioner committed adultery on the first day of October, 1887, was the same-Eachael Woodward with whom he unlawfully cohabited from the 15th day of January, 1886, to November 23d, 1888. If such was the fact, and it had been properly pleaded and proved on the trial, it would have constituted a good defense to the indictment for adultery; but this-court cannot, on habeas corpus, hear evidence nor deter[170]*170mine the questions from anything outside of the record in this case.
Counsel for petitioner insists that the records attached to his petition show that the adultery was committed with one of the same women, to-wit, Eachael Woodward, with whom he had unlawfully cohabited, because of the identity •of the name in the indictments numbered 1,890 and 1,891, and cites Whart. Criin. Ev. § 802, and State v. Kelsoe, 76 Mo. 505. These authorities go no further than to lay down the doctrine that identity of name raises a presumption, more or less strong, according to circumstances, of identity of person. Wharton says: “Identity of name is not by itself, when the name is common, and when it is borne by several persons, in the same circle of society, sufficient to sustain a conclusion of identity of person. The . inference, however, rises in strength, with circumstances indicating the improbability of there being two persons of the same name at the same place, at the same time, and when there was no proof that there is any other person bearing the name. Names, therefore, with other circumstances, are facts'from which identity can be presumed.”
In the case of State v. Kelsoe, supra, the defendant was indicted for burglary under the name of Charles Kelsoe, alias McCarty. At the trial he testified in his own behalf, and for the purposes of affecting his credibility the State introduced the record of the conviction of Charles Kelsoe, alias McCarty, of grand larceny, and this was claimed to be error: but the Court held that identity of such a name was sufficient to raise a presumption of identity of person and was proper evidence therefore to go to the jury. But in this case even the presumption of identity of person from identity of name does not appear from the indictment, nor any part of the record in the adultery case, but only appears in the record of another case, and hence cannot be considered in determining the question now presented. In none of the •caées cited by counsel for petitioner, nor in any we have been able to find, has it been held that on habeas corpus facts not appearing in some part of the record of the case could be considered. It was the duty of petitioner, if he relied for defense upon the fact of a former conviction, to have [171]*171pleaded it in tbe district court, instead of pleading it for tbe first time on habeas corpus, in tbis court. In tbe case of In re Barton, 21 Pac. Rep.
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Anderson, J.:
Tbe petitioner alleges that he is a prisoner in the custody of Frank H. Dyer, United States marshal for the territory of Utah, in the penitentiary of said territory, for a criminal offense against the laws of the United States, to wit, adultery; that such confinement is by virtue of a judgment, warrant, and the proceedings of record, including three indictments against him, his arraignment thereon, and pleas thereto, respectively, and convictions thereon upon his pleas of guilty thereto. A copy of the record is in each case attached to the petition. He alleges that under the judgment in two of the cases he has been imprisoned in the penitentiary for more than sis months, [168]*168and bas paid the fines and costs adjudged against 'him therein; that he is now imprisoned under the other one of the judgments rendered against him, and that such imprisonment is illegal, for the reason that the Court had no jurisdiction to- pass judgment against him in said case; that the two judgments which he has satisfied by suffering the imprisonment, and paying the fines and costs adjudged against him therein, were both for the crime of unlawful cohabitatio'n, and that he is now imprisoned under the judgment of the Court rendered against him on the indictment for adultery; that the offense is the same offense for which he has suffered punishment under the other indictments, and that the Eachel Woodward mentioned in. the indictment for adultery, and in one of the indictments for unlawful cohabitation, is one and the same person, and that he is being punished twice for the same offense; that the Court had no jurisdiction to render judgment against him on his plea of guilty to the indictment of adultery, and that the same is void; and he prays to be discharged from imprisonment thereunder. A writ of habeas corpus was heretofore issued in the case, and the petitioner produced in court by the United States Marshal. From the exhibits attached to the petition, it appears that on the 9th day of January, 1886, the petitioner was indicted in the district court of the first judicial district for the crime of unlawful cohabitation, alleged to have been committed between August 1, 1884, and December 10, 1885, by living and cohabiting during said period of time with Barbara Maughan, Elizabeth Hull, Erdner Maughan, Maggie Nib-ley, Mary Hale Maughan, Eachael Woodward Maughan, and Francis Nibley Maughan, as his wives. This indictment is designated as No. 781. The indictment was found upon the testimony of C. L. Lowe and Thomas Grant, November 9, 1888. Petitioner was arraigned, and pleaded not guilty. November 23, 1888, petitioner changed his plea of not guilty to that of guilty. January 3, 1889, petitioner was sentenced by the Court to pay a fine of $100, and $34 costs, and to be imprisoned in the penitentiary six months, the imprisonment to commence to run from said date. It also appears that on the 23d day of November, [169]*1691888, the petitioner was indicted in said district court fox*' tbe crime of unlawful cohabitation with Barbara Maugban, Elizabeth Maughan, Margaret Maughan, Mary Maughan,. Eachael Woodward, and Euphira Maughan, by living and. cohabiting with said women as his wives from the 15 bh day of January, 1886, to the 23d day of November, 1888, This indictment is designated as No. 1,890, and was found upon the testimony of the petitioner alone, who voluntarily appeared before the grand jury at his own request and. gave testimony. On the same day he appeared in open court, was arraigned, and pleaded guilty to the indictment. January 3, 1889, petitioner was sentenced by the Court to pay a fine of $100, and $31 costs, and to be imprisoned in the penitentiary six months, the imprisonment to run from said date. It further appears that petitioner was also-indicted in said court on the 23d day of November, 1888,. for the crime of adultery alleged to have been committed on the 1st day of October, 1887, with one Eachael Woodward; that the said indictment was designated as No. 1,891, and was found on the testimony of Joseph Howell;, that on said November 23 petitioner was arraigned, and pleaded guilty to the indictment, and on the 3d day of January, 1889, was sentenced by the Court to be imprisoned in the penitentiary for two years and six months, and pay the costs of prosecution, amounting to $29.
Erom the foregoing it will be seen that the petitioner was regularly indicted, convicted, and sentenced for the-crime of adultery, upon his plea of guilty made in open court. There is no illegality appearing anywhere in the record of the case. It does not appear in which of the-three cases the plea of guilty was first entered, nor in which case judgment was first rendered. It does not appear that-the Eachael Woodward with whom petitioner committed adultery on the first day of October, 1887, was the same-Eachael Woodward with whom he unlawfully cohabited from the 15th day of January, 1886, to November 23d, 1888. If such was the fact, and it had been properly pleaded and proved on the trial, it would have constituted a good defense to the indictment for adultery; but this-court cannot, on habeas corpus, hear evidence nor deter[170]*170mine the questions from anything outside of the record in this case.
Counsel for petitioner insists that the records attached to his petition show that the adultery was committed with one of the same women, to-wit, Eachael Woodward, with whom he had unlawfully cohabited, because of the identity •of the name in the indictments numbered 1,890 and 1,891, and cites Whart. Criin. Ev. § 802, and State v. Kelsoe, 76 Mo. 505. These authorities go no further than to lay down the doctrine that identity of name raises a presumption, more or less strong, according to circumstances, of identity of person. Wharton says: “Identity of name is not by itself, when the name is common, and when it is borne by several persons, in the same circle of society, sufficient to sustain a conclusion of identity of person. The . inference, however, rises in strength, with circumstances indicating the improbability of there being two persons of the same name at the same place, at the same time, and when there was no proof that there is any other person bearing the name. Names, therefore, with other circumstances, are facts'from which identity can be presumed.”
In the case of State v. Kelsoe, supra, the defendant was indicted for burglary under the name of Charles Kelsoe, alias McCarty. At the trial he testified in his own behalf, and for the purposes of affecting his credibility the State introduced the record of the conviction of Charles Kelsoe, alias McCarty, of grand larceny, and this was claimed to be error: but the Court held that identity of such a name was sufficient to raise a presumption of identity of person and was proper evidence therefore to go to the jury. But in this case even the presumption of identity of person from identity of name does not appear from the indictment, nor any part of the record in the adultery case, but only appears in the record of another case, and hence cannot be considered in determining the question now presented. In none of the •caées cited by counsel for petitioner, nor in any we have been able to find, has it been held that on habeas corpus facts not appearing in some part of the record of the case could be considered. It was the duty of petitioner, if he relied for defense upon the fact of a former conviction, to have [171]*171pleaded it in tbe district court, instead of pleading it for tbe first time on habeas corpus, in tbis court. In tbe case of In re Barton, 21 Pac. Rep. 998, tbe same principle was involved. In tbat case Barton was indicted for unlawful cohabitation witb one Mary Beesley, and also for adultery committed witb Mary Beesley during tbe time covered by tbe first indictment. Botb indictments were found by tbe same grand jury, upon tbe same evidence, and botb indictments were presented at tbe same time. Barton pleaded guilty to botb indictments on tbe same day. The Court suspended sentence in tbe case for unlawful cohabitation, and sentenced him to imprisonment on tbe charge of adultery, and be presented bis petition to tbis court, asking to be discharged on habeas corpus from imprisonment, because tbe district court bad no jurisdiction to sentence him in tbe adultery case, after bis conviction on tbe plea of guilty to the charge of unlawful cohabitation. In denying him tbe relief prayed for, Hendebson, J., speaking for tbe Court, used the following language: “ "When a person is charged witb a crime before a court having jurisdiction to determine bis guilt or innocence, and be claims immunity by reason of a former conviction or acquittal, tbe burden is upon him to plead it in answer to tbe charge and establish it by bis evidence; and if be does not do so it is waived. 1 Bisb. Grim. Proc. § 806; 1 Whart. Crim. Law, § 538 et seq.; Ex parte Kaufman, 73 Mo. 558; In re Bogart, 2 Sawy. 396; State v. Webb, 74 Mo. 333. Tbe question of a former conviction was a matter of defense, and was a question for the determination of tbe court having jurisdiction to try tbe charge. It involves an issue of fact, tbe identity of tbe offenses charged, tbe existence and priority of tbe record relied upon, and on habeas corpus tbis court cannot try such an issue.” Tbe rule here laid down is decisive of this case, and we see no reason to change or modify it. Whatever merit there may be in tbe petitioner’s case is a proper subject for executive consideration, but tbis court can afford him no relief. Tbe prayer of tbe petitioner is denied, and an order will be entered accordingly.
Zane, C. J., and Hendebson, J., concurred.