The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-06-07

third Judge who in the meantime may be hold
ing court in his district, or passing his time IN
any other manner, and referring the question
to him the decision can be arrived az
The right to be heard by counsel orally Is q
right that no man can be deprived OF by any
court in any manner. II Is granted MN Nv an
me rules OF the common law, as wei as the
constitution and the statutes of this country. =
deprivation OF that right by any court IS an OK
cess OF authority which cannot be Justified II
matters not how or in what manner he may be
deprived, whether by rule OF court or In any
other way. In the hurry and rush OF business,
and amid the WEAKNESS that follows the laDoIs
| of the bench courts are too prone to restrict
| counsel in the proper presentation OF their
causes: but courts exist for the purpose OF care
fully considering the questions that are Drought
before them and under our civilization an attor-
ney is recognized as a useful arm OF the court,
and his right to argue his clients cause IS SO
| fundamental that 1t cannot be Salnsald. ii q
| Judge OF the supreme count who did not SIT IN a
| cause, and did not hear the arguments, has the
right 10 take part in its decision, then II Judge
| who was about 10 retire from the bench, who
has heard a case in q district court, and fallng
| TO decide the same before he retires, his sue
| cessor, who would know nothing about the case,
except what he might ind IN the papers nIeu,
could properly proceed and decide the cause,
II was suggested from the bench, when TINS
cause was decided that as Judge Foreman mad
retired from the bench, twas necessary, IN order
to arrive at decision, for some one OF the Judges
who did not hear the arguments 10 tAaLulHe lilc
case and TO join in the opinion. Your petitioner
respectfully submits that the course taken was
unjust to him and tended TO his prejudice,
Your petitioner further represents that Tn the
statutes OF this Territory declare that The
presence of two justices OF the supreme court Is
necessary for a transaction OF business ana
also that 1.-The concurrenceS of two Justices OF
the supreme court is necessary to pronounce a
Judgment: if two do not concur the case must be
rehe ard
Your petitioner therefore represents to the
court that he is entitled TO rehearlng IN this
case.
2-Itis well settled principle of the law, that
all presumptions are in favor of the Judgment OF
the court below. The burden OF showing error Is
cast upon the appellant. If there is question
as TO whether there is or is not error in a record
on appeal, the doubt must be resolved IN favor
of the respondent These principles are 100 wen
established to require condition OF authorlIleS
in their support.
Your petitioner represents as second ground
WHY he should be granted rehearlng that the
court manifestly misunderstood the rullnG OF the
court below with regard 10 the rejection OF tes-
timouy upon the question of the reputation OF
the respondent. 1t woS upon this point that
judgment of reversal was ordered; bhls court
saying, referring to the lower court, Ihe
learned Judge seems to have confined the testl-
mony to tho general reputation Tor some par
ticular crime when IL should have been 10 tne
actual moral character" An inspection OF the
record on page So, will show that the defendant
put the following questions:
Q.-''Are YOU acquainted with the general rep
utatioh in the village, for morals and varaclty
and for"
Q.-"Especially his morals and general charac-
ter; are you acquainted with II:
Ayes sir.
This was objected 10, and the court inquired of
counsel for defendant whether he was lnqulring
into the character OF the plaintiff, as an honesV
man and truthful man, and an industrious man,
to which defendants counsel made reply moi
perhaps as TO his being an industrious man, put
mis- general character for morals in the nelghoor-
hood" The court ruled that the defense might
INQUIRE as to the reputation of the plalntn as TO
chastity, virtue, good morals anc as an orderly
and law abiding citizen. See pages IS ana 5s
This was all that the counsel for defendant de
sired He simply asked to inquire as to his gen
eral character with reference 10 morals III the
ueighbfrhood: he was allowed to do that. For
instance on page 50 this question was put:
..Q-Are you acquainted with his general
reputation, in regard TO chastity and good
mOralS;'
This question was objected TO. and the court
ruled: Il am inclined 10 think that this charge
Of rape involves his moral character"
Again on page &C. the question was asked:
.Q-Are you familiar and acquainted with his
general reputation, in regard TO his chastity and
The same question will be found on pages 81
s.. 81, 81 81, 100 l02, l04 and l07. The word
moral is very broad in its meaning. A moral
man is one who conforms to rules OF night or to
the divine law respecting social duties ylrtuous,
lust. etc TSee Websters Dictionary When
1
opinion that the defendant should have been
allowed 10 present evidence as TO the PLAIN
tins general reputation or character" an
examination of the record discloses the
fact that the question put was as broad as this
court says that it should have been, and was as
broad as defendants counsel desired TO put II.
He did not claim the right 10 inquire as to the
general reputation; what he said he desired IN
the court below, was TO inquire as TO plaintiff 5
general reputation as 10 morals This the
court allowed. and there was nothing lett for h m
TO complain of. 1t seems clear that this court
has committed 4 manifest error upon this point.
Moreover, after the plaintiff had been upon the
stand defendant introduced testimony showing
that the plaintiffs reputation for truth and YER
acity was bad he could not have been injured by
any ruling made.
iU-Your petitioner further represents that
this court erred in its decision in this The court
saws: As there must be Il new trial OF TINS ac-
tion, We do not consider IL necessary to discuss
the other questions raised by the aspeaL"
Section gJy6 OF the Compiled Laws OF 1883,
mage 1871. saws: THE decision of the court shall
be given in writing and in giving decision, If a
new trial be granted, the court shall pass upon
and determine all tue questions of law involved
| III the case presented on such appeal and neces
sagy TO the final determination OF the cause. II
appearing from the opinion that this mas moi
| been done. rehearing should be granted Your
petitioner therefore prays this honorable court
| TO grant hearing in said cause.