Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1902-08-26

The attendance az the nearing or the
motion for a new trial IN the Morten-
sen case today was even smaller than
Yesterday, not more than 30 spectators
being present at any time. The con-
ylcted man occupied chair beside his
father and brother Henry, and display
sd very little concern or interest in the
proceedings. The only juror present to-
day was .ienry Tribe, who was also
present az yesterday afternoons SEES
sion Of the court.
Atty. stewart concluded his opening
argument this morning before II
o'clock and Dst,-Atty Eichnor had
about concluded at noon The closing
argument for defendant win probably.
consume tyo hours, and the matter viii
una.ub .dIy be submitted to the court
This Afternoon. II Is quite probable
hat de | ion will b. rend red 10 nor
row, fci the judge has to go to Summit
county on Thursday and TO Tooele on
saturday so he win undoubtedly rem
der mia decision before leaving the city,
pHEJUDICIAL TO JURY.
The arguments Of Mr. Stewart this
morning were upon the point that dis
tnct attorney had made statements
10 the jury which had prejudiced the
minds OF the jurors against defendant
and the court erred In not ordering such
remarks stricken from the record. He
read from great many authorities
which he'd that such statements made
10 a Jury are grounds for new trial.
COURTS SUGGESTION.
mfr. Stewart it is not worth while
10 take up time by reading the authorl-
ties on that point, the court is familiar
with the law on the subject, the only
quetslon is, did the district attorney
make such statements that would
prejudice the Jury to such an extent as
70 warrant a new trlal?' said Judge
Morse.
The counsel then read from the rec
ord various statements of Dist Atty
Elchnor, which he contended should
have been stricken out.
In conclusion Mr.. stewart said: AN
other ground upon which we should
have a new trial is that the evidence
does not Justify the verdict OF murder
in the first degree. take II that II Is
not necessary to go over the evidence
as your honor is familiar with II, but
] contend that after careful consid-
Grafton of the same the court VIII ma
that there was not sufficient evidence
10 Justify the jury In finding this de-
fendant guilty of murder In the nrst
degree. and | think that the court
should grant this defendant new
trial"
EfCHNoR'S REPLY.
In opening his argument against the
motion, Distict Attorney Elchnor stat
ed that he would first reply to the lat
Ter part Of Mr. Stewards argument
wherein he was charged with making
Improper statements TO the jury by
I'm substance calling attention 10 the
fact that Peter Mortensen did not tesu-
~ in his own behalf. The district at
torney then read from the case OF Peo-
pIe VS. McGrath IN 9Th Utah reports,
wherein the prosecuting attorney made
much stronger statements, calling the
1ury's attention to certain matters that
could have been explained by defendant
had he been placed on the stand, than
were made In this case, and the SUI
preme court held that they were not
grounds Cor reversal
III attention was called TO the fact
that defendant did not TESTIFY IN MS
own behalf" continued Mr. Elchnor,
III was done by the attorneys for de-
PENDANT. / merely stated TO the Jury
that defendant had said TO a certain
witness that he would explain certain
matters when the proper time arrived
and that the proper time would De at
hand when defendants attorneys maze
their arguments before the jury that
Attorneys Stewart and Stewart would
explain all those matters. NOW IN
making their arguments defendants at
torneys stated that | had made that
statement for the purpose OF calling az.
tention to the fact that defendant ala
no testify and for the furtherpurpose OF
prejudlcing the minds OF the jurors
Hence they are the ones who are re-
sponsible for calling the jury's alten-
ton TO that fact.
PRINCIPAL POINT
THE principal point In this motion Is
that the Jury was allowed to we" the
premises without defendant. IN oruel
10 get the matter clearly Del, re me
court will read from the record Wneie
II shows that d, iendant was ASKED
he desired 10 go with the Jury, ana his
attorneys replied that deiencanl nlu
not. The next morning defendant was