Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1900-07-21

der the name OF James Morgan Win
murder IN the fret degree. His trial
was begun on the came day and ter
minated on the 18th with a verdict OF
guilty. on the 18th OF May, 1899, q
motion for new trial was made and de-
MED, and on appeal 90 the Supreme
court Of this State the judgment was
affirmed.
Three weeks after tho motion Tor
new trial had been heard and denied,
and on the 9Th OF June, 1899. an aiiida-
VII was obtained from Vern Phillips OF
Brigham City that before the trial he
heard William Fosgreu, one OF the
Jurors who tried the case say, In the
presence Of several persons, who were
named In the affidavit. that the defend
ant should suffer DEATH and II he Cos
gren) were on the jury he would
have him convicted, and that
he deserved 70 die. Fosgren when ex-
am'ned upon his voir dire said: The
opinion that ! have Is not well settled;
just what would naturally arise from
having conyersed. l could SIT here
and give the defendant an impartial
trial"
This affidavit Of vern Phillips was
not made the basis OF a second apph-
cation for q new trial Counsel for the
defendant seem 10 have proceeded upon
the theory that as one application for
new trial had been made and denied,
another could not be made and that
the case was beyond the jurisdiction Of
the District court. The original atiida-
VII was annexed 10 the abstract sent TO
the Supreme court. and is stll there,
and Il Is offered 20 the board Of pardons
now as a new document In support OF
this application. But although physi-
cally In the record # Is not there prop
erly. The attorney general IN his brief
IN this case In the Supreme court says
"there Is no such AFFIDAVIT I'm the re-
cord and In a technical sense his
statement Is correct Not being In the
record the Supreme court could not and
did not consider 10 in affirming the
judgment Of the lower court.
II the disqualification OF the juror
Fosgren had beer discovered I'm time 90
make Il a basis Of an application for a
new trial before judgment entered In
the District court and the court had re-
fused TO grant the motion, there is little
doubt but that the Supreme court OF
this State following the line OF prece-
dents, would have reversed the judg-
ment In a parallel case, that OF Pe0-
pie VS. Fitzgerald reported In LIST Colo
RADIO. the court SAYS:
1.-THE third and last error Is OF a more
important character. That the court
below erred in denying the motion for
a new trial, when Il was shown that one
OF the Jurors who sat upon the trial was
biased and prctudiced against the plain
tin in error and had formed and eX-
pressed an opinion Of his guilt before he
took his oath and seat as a juror.
This exception, under all the cir
cumstanCes Ia this case we think Us a
good one, and on 10 this judgment must
be reversed. Trial by jury is Of most
ancient origin. II had always. IN all
ages and countries where 10 has been
adopted and used, been esteemed and
held 10 be one OF The most cherished
and carefully guarded rights OF the Ieo-
pie. In magma charta the right OF trial
by jury was as earnestly and deter
minedly insisted upon as the great right
Of habeas corpus and the people Of
England were no less Jealous and
watchful IN guarding and protecting
the purity of The jury box than they
were determined and earnest ia assert
ing it az a great popular right IL rs.
In the words OF an eminent English au-
thor. the palladium Of the civil rights
OF the people and 10 is the boast OF her
people that their parlaments and their
courts have ALWAYS directed their best
efforts 20 maintain It's purity In our
own land Of boosted liberty, trial by
jury Is one Of the great constitutional
landmarks, and any violation OF the
purity OF Its sacred precincts Is looked
upon by all as a great crime. Com
mon custom and the sanction
Of the law permits party
in a suit 20 have "a juror solemnly
sworn 20 make true answers 20 such
question as may be- asked Of him
touching his competency as a Juror;
and before be is permitted 90 be sworn
as a Juror IN the particular cause. he
is required under the s0lemnity OF an
oath. 90 answer AN such reasonable and
proper questions as may be put TO him
touching his interest bias or affection
IN the cause. as 90 the parties II upon
such examination 81 appears that the
juror Is from any cause, under any in-
huence OF fear. favor or affection. or
that De has IN any way and on cause
made w an opinion as 90 the merits
Of the cause be Is Justly and properly
Eel aside by the court as an incOmpe-
tent Juror I'm that cause.
An examination OF the facts COM
planned of in his cause reveals 60 us
the juror William Morgan 60 whom
objection was made, was In the neigh
horhood Of the place where the homl-
eide occurred at the time OF It's occur
renee, and that he had heard from dif-
ferent parties a narration Of the facts
in the case. He declares that from
what he heard OF the transaction. he
had formed and expressed an opinion
as 90 the guilt or innocence Of the ac-
cused The juror on being further in
terrogated, stated that be thought he
could give the prisoner fair trial. and.
% further question. be answered that
he could give the accused a fair and
Impartial trial without being infu-
enced BY that opinion Whether the
refusal TO permit this juror under such
circumstances 10 be set aside for cause
was error 10 reverse the judgment, we
win not here decide, but, coupled with
what was made apparent 10 the court
On the motion for a new trial by the
affidavit OF Shallcross, we think that
there was error In the court below In
refusing 10 allow the plaintiffs motion.
"'shallCross swears that on the
morning OF the day Of the trial and be.
fore the jury lmpaneled In the cause.
I heard William Morgan express
strong conviction OF the defendants
guilt, one Of the expressions he used
was this. / would hang the son OF
a bitch on the evidence I already have.
unless stronger testimony than I have
heard could be brought In his favor
and numerous other sentiments Of a
like import that cannot now remem-
ber.'
such expressions We think exhibit
malignlty and yindictlveness on the
part Of the juror toward the accused in
consistent with the purity required IN
the jury box, and We think that when
the defendant stood before the court
with that uncontradicted affidavit In
his hand and from the verge OF the
grave appealed FOR a new trial Ia his
cause by an impartial jury. Il was his
right 20 be heard and the refusal 10
grant him that right was such error as
requires US 20 reverse the judgment OF
the court below. which Is done and the
cause Is remanded and a new trial
awarded"
III the affidavit OF Ven Phillips had