Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-08-26
Decision May
Come Tomorrow
c4rgumens in Hearing in The Afoion for SNeO Trial in he
Aloshnsen Case Dra@lng 10 Close - cAS The Court
Leaves Sail Lake Thursday ii IS Thought VIII Ren-
des Speedy Decision

again asked If he desired TO visit the
premises with the Jury and he again.
by his attorney declined TO go, and
further than that he waived any OBJ
lection to the jury going down there
without him. Now, after kfendant
has waived any right TO object to the
visit. his attorney in open court has
agreed to such waiver, can he come
IN here and raise the point that he
had no right 10 waive such objections
and make such action Of the jury a
ground of error for a new trial?
FROM PROSECUTIONS STAND
POINT.
IT there was any error In allowing
the jury to visit the scene Of the crime
without defendant and | don't concede
for one moment that 1t was error,
contend that defendant could waive
the right to object TO such action Of
the jury and the authorities bear me
out In my Fatement.
Mr.. Eichnor then read from number
Of authorities on the point Of waiver.
There Is some question In this state,
he continued, AS to the necessity Of
the defendant 10 visit the scene OF the
crime with the jury, as that point has
never been passed upon by our supreme
court The courts Of California, Ar
kansas and Mississippi hold that II is
necessary for defendant TO accompan"
the jury. Those of Idaho, Oregon
Wisconsin, Michigan, Iowa, Minnesota,
indiana, Massachusetts,. New Jersey,
Pennsylvania, New York, Kansas, Ne
hraska and Oklahoma, hold that de-
fendant need not be present when the
jury visits the scene OF the crime.
NOT NEW EVIDENCE.
Il don't agree with Mr.. Stewart that
visiting the scene of the crime Is secur-
ing new evidence. The purpose Of the
Wis is to better understood the testi-
mony of witnesses who testified at the
Trial"
MIR. Eichnor will you please explain
to the court how the jury can visit the
premises without getting new evl
dence?" asked Mr.. Stewart.
Yes SIR was the reply, 1T Is 1ust
as say they so down there so that
they can more clearly understand the
testimony Of the witnesses. That may
&c getting evidence but II Is not evil
dence Ia the meaning OF the statutes.
Suppose defendant had not consent
ed to the jury going down there, what
effect would that have had on the 1ur-
ols?" was asked by Mr. Stewart,
THE jury would not have gone ont.
The court would not have permitted It.
There is the glst Of this whole mat
Ter; you sat Their with defendant and
consented TO the jury going out there
without defendant and then come here
and make your consent the ground of
error for new trial. In conclusion
WI say that the majority Of the au-
thorities and the highest authorities
hold that defendant need not be pres
ert when the jury visits the scene o!
this crime.
HENRY MORTENsEN.
NOW in regard to the affidavit OF
Henry Mortensen. which was filed and
served on me yesterday morning, | say
that Il Goes outside of the facts, set
forth IN the original motion for a new
trial and sets up new matter i there
fore move the court that the affidavit
be stricken from the files for the reason
that the time had expired for films
ouch an affidavit, and for the reason
that the same sets up entirely new
raatter not pertaining to the original
| motion In this case
The court-"The affidavit will not be
stricken out. There are, perhaps, some
matters contained therein Of which tie
court viii not take legal notice
Mr.. Stewart now move that The
aFdavlts Of Jurors James NJ. Barlow
| stephen II. Leroy and John Il. DALEY
| he stricken from the files for the reason
| that they are irrelevant, incompetent
and immateriaL"
Judge Morse refused to order tn,
| anidavits stricken nom the calendar
| after which the court took a recess
until o'clock.
THIS AFTERNOON.
/ At the afternoon session Mr.. Eich
nor. after making slight alteration II
his motion to strike out the affidavit o.
Henry Mortensen, stated that he hac
no further argument 10 make
Atty. BARNARD Stewart then com
menced his final argument IN favor o
the motion for new trial. lie argue
that the district attorney dld cali th'
/ iury's attention to the fact that De
PENDANT did not take the stand IN HI
! own behalf, and that on at least doz
en- occasions during his argument h
/ called attention to the fact that tn
evidence Of one witness or another wa
undisputed. thereby inferring that de
PENDANT was not placed on the stand L
dispute such evidence. lie cited fur
ther authorities TO show that sucl
statements were grounds Of error
nd Courts
! TAKEN UNDER AMUSEMENT.
At the conclusion OF The arguments
which were brought 70 a close at S'l
his afternoon. Atiy. Stewart submitted
n brief Of authorities, after which IN
court took the case under adviselnen
until tomorrow afternoon at O'Clock