while she was yet living and his wife he married Caroline Owens, as charged in the indictment, your verdict should be guilty.

"A legal wife cannot, but when it appears in a case that the witness is not a legal wife, but a bigamous or plural wife, then she may testify against the bigamous husband, and her testimony should have just as much weight with the jury as any other witness, if the jury believe her statements to be true. And her evidence may be taken like the evidence of any other witness to prove either the first or second marriage. And so in this case you are at liberty to consider the testimony of Miss Caroline Owens, if you find from all the evidence in the case that she is a second and plural wife, and give it all the weight you think it entitled to, and may use it to prove the first marriage alleged, to wit, the marriage of defendant and Emily Spencer, or any other fact which in your opinion is proven by the testimony, if you believe it, as you do the testimony of any witness to prove any fact about which she has testified.

"The prisoner's guilt must be established beyond reasonable doubt. Proof beyond a reasonable doubt is such as will produce an abiding conviction in the mind to a moral certainty that the fact exists that is claimed to exist, so that you feel certain that it exists. A balance of proof is not sufficient. A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant's guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests."

The plaintiff in error alleges as ground of error the exclusion from the jury of Oscar Dunn, Robert Patrick, and others of the Mormon faith. He claims that the examination of the proposed jurors, and the rulings of the court, show that it was the deliberate purpose of the court to exclude from the jury every one who was of the Mormon faith. He insists that neither the court nor counsel had the right to inquire into the religious belief of the juror.

There is no complaint that the jury was not a fair and impartial one, or that any juror impanelled was disqualified.

Whether the exclusion of qualified jurors from the panel is a ground for setting aside the verdict and judgment on error, we do not find it necessary to decide.

It is insisted on behalf of the defendant in error that the excluded jurors were not qualified to sit in the case. In impanelling the jury the court was bound to follow the law of the Territory on that subject. Clinton v. Englebrecht, 13 Wall. 434; Reynolds v. United States, 98 U. S. 145.

The jurors excluded were objected to by the prosecution as disqualified from serving for actual bias.

The challenge for actual bias was tried by the triers appointed by the court, in accordance with the law of the Territory. The triers found the challenge true. By the same law their decision is declared to be final, and thereupon the jurors challenged must be excluded. The law was carefully followed. The jurors were found disqualified, and were, therefore, as required by the law, excluded from the panel.

It is evident from the examination of the jurors on their voire dire, that they believed that polygamy was ordained of God, and that the practice of polygamy was obedience to the will of God. At common law, this would have been ground for principal challenge of jurors of the same faith. 3 Bla. Com. 303. It needs no argument to show that a jury composed of men entertaining such a belief could not have been free from bias or prejudice on the trial for bigamy, of a person who entertained the same belief, and whose offence consisted in the act of living in polygamy. But whether the evidence of bias was sufficient or not, it was so found by the triers, and that was conclusive.

Whether or not that bias was founded on the religious belief of the juror, is entirely immaterial, if the bias existed. It has been held by this court, that on an indictment for bigamy it was no defence that the doctrines and practice of polyg amy were a part of the religion of the accused. Reynolds v. United States, supra.

It could not, therefore, be an invasion of the constitutional or other rights of the juror called to try a party charged with bigamy, to inquire whether he himself was living in polygamy,

and whether he believed it to be in accordance with the divine will and command.

If the jurors themselves had no ground of complaint, it is clear the defendant had none.

We find nothing in the record in relation to the impanelling of the jury which would have required the Supreme Court of the Territory to set aside the verdict and the judgment of the District Court.

It is next assigned for error, that the court admitted the declarations and admissions of the plaintiff in error to prove the fact of his first marriage, and the charge of the court that the declarations of the accused were evidence proper to be considered by the jury as tending to prove an actual marriage, and that such marriage might be proven like any other fact, by the admissions of the defendant, or by circumstantial evidence, and that it was not necessary to prove it by witnesses who were present at the ceremony.

To hold that, on an indictment for bigamy, the first marriage can only be proven by eye-witnesses of the ceremony, is to apply to this offence a rule of evidence not applicable to any other.

The great weight of authority is adverse to the position of the plaintiff in error.

In Regina v. Simmonsto (1 Car. & Kir. 164), it was held that, on an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner; and it is for the jury to determine whether what he said was an admission that he had been legally married according to the laws of the country where the marriage was solemnized.

The same view is sustained by the following cases: Regina v. Upton, cited in 1 Russell, Crimes (Greaves's ed.), 218; Duchess of Kingston's Case, 20 How. State Trials, 355; Truman's Case, 1 East, P. C. 470; Cayford's Case, 7 Me. 57; Ham's Case, 11 id. 391; State v. Libby, 44 id. 469; State v. Hilton, 3 Rich. (S. C.) 434; State v. Britton, 4 McCord (S. C.), 256; Warner v. Commonwealth, 2 Va. Cas. 595; Norwood's Case, 1 East, P. C. 470; Commonwealth v. Murtagh, 1 Ashm. (Pa.) 272; Regina v. Newton, 2 Moo. & R. 503; State v. McDonald, 25 Miss. 176; Wolverton v. State, 16 Ohio, 173; State v. Seals,

16 Ind. 352; Quin v. State, 46 id. 725; Arnold v. State, 53 Ga. 574; Cameron v. State, 14 Ala. 546; Brown v. State, 52 id. 338; Williams v. State, 44 id. 24; Commonwealth v. Jackson, 11 Bush (Ky.), 679.

The declarations of the plaintiff in error touching his marriage with Emily Spencer, admitted in evidence against him, appear to have been deliberately and repeatedly made, and under such circumstances as tended to show that they had reference to a formal marriage contract between him and her.

We are of opinion that the District Court committed no error in admitting such declarations, or in its charge to the jury concerning them.

The charge of the court defining what is meant by the phrase "reasonable doubt" is assigned as ground of error.

The evidence upon which a jury is justified in returning a verdict of guilty must be sufficient to produce a conviction of guilt, to the exclusion of all reasonable doubt. Attempts to explain the term "reasonable doubt" do not usually result in making it any clearer to the minds of the jury. The language used in this case, however, was certainly very favorable to the accused, and is sustained by respectable authority. Commonwealth v. Webster, 5 Cush. (Mass.) 295; Arnold v. State, 23 Ind. 170; State v. Nash, 7 Iowa, 347; State v. Ostrander, 18 id. 435; Donnelly v. State, 2 Dutch. (N. J.) 601; Winter v. State, 20 Ala. 39; Giles v. State, 6 Ga. 276.

We think there was no error in the charge of which the plaintiff in error can justly complain.

The plaintiff in error next alleges that the description of the woman named in the indictment as the person with whom the crime of bigamy was committed, was not sufficiently specific, and that on the trial she turned out to be not Caroline Owens, but Caroline Maile.

The designation of Caroline Owens as the person with whom the second marriage was contracted is clearly sufficient. If it were not, it is too late after verdict to object. As to the fact, the jury has found that the person whom the plaintiff in error was charged to have married while his first wife was living, and still his legal wife, was Caroline Owens and not Caroline Maile, and that question is, therefore, conclusively settled by the ver

dict. This court cannot re-examine questions of fact upon writ of error. Rev. Stat., sect. 1011.

The plaintiff in error lastly claims that the court erred in allowing Caroline Owens, the second wife, to give evidence against him touching his marriage with Emily Spencer, the alleged first wife; and in charging the jury that they might consider her testimony, if they found from all the evidence in the case that she was a second and plural wife.

This assignment of error, we think, is well founded.

The law of Utah declares that a husband shall not be a witness for or against his wife, nor a wife for or against her husband.

The marriage of the plaintiff in error with Caroline Owens was charged in the indictment and admitted by him upon the trial. The fact of his previous marriage with Emily Spencer was, therefore, the only issue in the case, and that was contested to the end of the trial. Until the fact of the marriage of Emily Spencer with the plaintiff in error was established, Caroline Owens was prima facie his wife, and she could not be used as a witness against him.

The ground upon which a second wife is admitted as a witness against her husband, in a prosecution for bigamy, is that she is shown not to be a real wife by proof of the fact that the accused had previously married another wife, who was still living and still his lawful wife. It is only in cases where the first marriage is not controverted, or has been duly established by other evidence, that the second wife is allowed to testify, and she can then be a witness to the second marriage, and not to the first.

The testimony of the second wife to prove the only controverted issue in the case, namely, the first marriage, cannot be given to the jury on the pretext that its purpose is to establish her competency. As her competency depends on proof of the first marriage, and that is the issue upon which the case turns, that issue must be established by other witnesses before the second wife is competent for any purpose. Even then she is not competent to prove the first marriage, for she cannot be admitted to prove a fact to the jury which must be established before she can testify at all.