Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-08-25


affidavit filed by himself. In support
Ct his motion to place Mr. Young on
the stand, Mr.. Stewart argued that It
was a right OF this defendant 10 show
that the jurors stepped off certain dis.
tances and considered certain matters
as evidence during his absence. aud
that If the officers In charge of the
Jurors refused to make affidavit In re-
gard to such matters, It was only a
matter Of justice 70 defendant TO have
them In court to testify This Is
case" he said, "wherein the public Is
greatly wrought w and the officers are
lerhaps wrought up and IL Is necessary
that such action be taken in order TO
secure Justice to defendant The officer
of the court In charge of the fury has
refused to make an affidavit and /
think that he should be placed on
the stand to testify as to these nat
ters so that justice may be done defend
INT on hearing for a new trial"
THE COURT REFUSES.
Judge Morse stated that he did not
thlnk 1t proper to place Mr.. Young on
the stand In support of Atty.
stewards affidavit and he again re-
FUSED TO allow Mr. Young to be placed
on the stand
A motion was then made by Mr. Stew
art TO order Royal b. Young, Sheriff
Naylor, Bailllfs Anup and Bull 10 APP
pear IN court to testify az 10 the mat
ters set forth in the affidavit filed by
DEFENDANTS attorneys. 81 now offer 10
put Royal b. Young on the stand" said
Mr. Stewart ito prove that James NJ
of Nta. Go
the distance between Peter Mortensen's
house and James Il. Hays house and
the width of the street between the
houses and discussed such distances
with other jurors, and that one Juror
disagreed with him and stepped of the
distances himself The Jury was then
taken into the house and Mrs. Henry
Mortensen was asked the way TO the
cellar They went down into the cellar
and measured certain distances down
there. Juror Daley asked Mr.. Young
II the cellar was in the same condition
as when the murder was committed and
that gentleman said that he thought
not
81 wish TO prove that the jury then
walked down the street car track on
Seventh East street TO the Rio Grande
Western track and that Mr.. lie Roy
stepped Oft 10 yards on the latter track
east Of the crossing and one OF the
jurors said that that was not where
Peter MOrtensen stood, that he was
west Of the crossing Mr. lie Roy re-
piled that he guessed he was turned
around He then measured the dis
tance west of the crossing. Mr.. Young
then showed the Jurors the blood on the
ground and showed them the condition
Of the grave and explained other mat
tiers I'm connection with the scene Of
the crime"
Judge Morse then announced that taa
court would take a recess until O'Clock,
during which time the attorney for de-
PENDANT could ascertain whether or not
Mr. Young would make affidavit as 70
such matters within he knowledge in
relation to the visit TO tie scene OF the
crime At that time he said he would
determine on what further action
should be taken IN the matter. An adj
journment was then taken
WOULD NOT LET HIM TESTIFY.
When the court resumed It's session
this afternoon. Judge Morse denied the
motion Of Attorney Stewart 10 place |
Royal b. Young on the stand. Judge |
Morse stated that defedant's attorney |
would not be allowed TO put on any |
witnesses In connection with this mat |
ter Mr.. Stewart then asked that his |
statements made In connection with |
this matter. as To what lac wanted to |
prove by the witnesses. be made a part |
Of the record In connection with the |
motion for a new trial The request |
was granted by the court
Mr.. Stewart then made another at |
tempt 10 get the matter before the |
court by oral testimony by asking that |
Joseph Bull Jr. be placed on the |
stand TO testify as to certain measure
ments made by the Jurors The court |
on the stand and stated again that no |
witnesses could be placed on the stand |
In connection with this matter
The argument on the motion was |
then commenced by Nj Stewart, by !
reading the instruction OF the court 10 |
Royal b, Young, who was appointed !
as special officer Of the court TO take 1
the jury TO the scene OF the crime and |
point out the places mentioned In the |
testimony I'm the case.
I'VE contend, your honor argued |
Mr. Stewart. that error was commit |
ted in allowing the Jury TO visit the |
scene Of the crime without defendant |
accompanying IT, The defendant can
not waive his right TO visit the scene |
with the jury. That Is a constitutional |
right which cannot be waived. II Is a
right which Is given 10 him by the con-
Stituton of this state and the United |
states the right 10 he confronted by |
the witnesses againts him. II Is mp0s-
slbe for a Jury tu visit the scene Of
the crime without receiving new and |
stronger evidence through their senses.
Hence In this instance the cOnstitu \
tlonal right OF defendant was violated (
when the jury was allowed to visit the
premises without defendant accompa-
nying IT,
in that connection the court erred
when he allowed Mir Elchnor to state
In open court and allowed the same 10
be made part OF the record. that Mr..
John c. Sharp would testify as TO GER
tain matters. Mr.. Sharp did not testi-
~ 10 those matters In court. but they
were admitted by defendants attorney,
Under no consideration can the attor-
neys for defendant agree TO the adj
mission OF evidence against him. Such
action would not he confronting the de-
fcndant with witnesses. which as a
rlcht guaranteed 10 him by the Con-
stltution. In support Of that conten-
ton / cite a California case which Is
very similar 10 this case.
1.-THE situation IN this case is the jury
was sent 10 visit the premises with
out the defendant. Certain measure
ments were made by them, new Ideas
and impressions were received. The
officers In charge Of the jury refused to
make affidavit Of what took place on
the visit 10 the premises The court
refuses to order them 10 TESTIFY as TO
such matters because the testimony IN
the case Is closed
when this jury went down there 70
view the premises who can say that
they dld not receive impressions which