The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1903-10-31
NOR ENSEN'S
FATE SEALED
Continued from Page /.
Misconduct of Jury.

forms the basis for this appeal we are Of
4 the opinion that the motion TO dismiss is
Misconduct of Jury.
The questions presented on this appeal
relate 70 the alleged misconduct Of the
jury. while viewing the premises where
the homicide was committed, and to the
refusal Of the court 10 require the officer
who had charge of the jury at the view
upon his refusal to make affidavit at the
request of the defense. to give oral tesC-
mony concerning the alleged misconduct
OF the jury, which testimony was 10 pc
used In support of the motion for a n-W
trial instead of an affidavit. These same
questions were presented on the former
appeal, were considered by us with much
care. and decided adversely 60 the de-
PENDANT. although without extended SEP
arate discussion Of the particular points
Counsel for the defense, however. IN
sist that the affidavits I'm support of the
motion for a new trial now disclose ma
terial facts, pre1udicial 10 the rights or .
the defendant. which were not presented
TO the court in support OF the iorInr .
motion.
we perceive nothing in the present al
! fidaVits to warrant this contention IT
/ is true the former affidavits did not pre-
I sent so much I'M detail the alleged mis-
conduct as 90 those now presented. but,
at the hearing OF the former motion. IN
addition TO the affidavits then presented.
counsel for the defendant made TO the
court an offer of what he proposed TO
prove by the oral testimony OF the Of
ficer, who refused to make an affidavit.
That offer. as contained i'm the record
OF the former appeal, covered about Two
pages of typewriter matter, showing
very fully what the alleged misconduct
of the jury and officer was, and the
same was considered by the court IN
connection with the affdavits, as shown
by the record of proceedings, appearing
i'm the former abstract, which record, so
far as material here, reads:
The Court-'rhe court does not under
stand the offer At this time you are
asking to have that statement become
part of your affidavit and sworn TO as
being true by you.
Testimony Of Young.
Mr.. J. b. Stewart wish to have the
statement which / have made. with ref
ercnce to the testimony that L desire 20
put in, the proof and the facts that have
been set forth as being able to prove by
Royal B. Young say wish 10 nave
that statement considered in connection
with the affidavit which was heretofore
filed. Like the record to so show, that /
desire to have that Incorporated.
THE Court-The court will consider 1t
in connection with your affidavit
Mr.. J. b. SteWart-SO that it may be-
| come part of the record?
The Court-It is part Of the record
I certainly
Upon examination and comparison 1t
/ will be seen that the proposed testimony,
! thus presented in an offer and received,
} 10 be considered by the court in connec-
ton with the matter contained in the az
/ fldaVits is substantially the same as the
matter contained in the present affidavits,
concerned
The anidavits now relied upon simply
, Z present the conduct of the jury while
! viewing the premises more in detail, and
; show more minutely of what the alleged
misconduct consists. rms seems 70 pc
admitted by council for the defense IN
I their brief. filed on, this appeal when,
I after stating what they claim to be the
! substance of the affidavits filed i'm sup
I pOrt of the former motion for new trial
| they say: THE present atftdavitS show
more fully of what the misconduct con-
There is no claim that any Of the jurors
| were biased or pTejudiCed against the ac-
cused. or that any of them had. before
! they were called as jurors in the case
formed or expressed an opinion as TO the
defendants guilt.
clusiOn is irresistible that no right to a
second appeal. has been shown.
Been Before Court.
The same questions now presented hay
ing been before this court on the former
appeal and having been considered ano
decided on that occasion under facts OF
, the same character they must now De
regarded as res 1udlcata- TINS aDDeal IS
i'm effect an appeal from our own judS-
u1ent and must -faf. 1t cannot be main
The case Of state VS.. Morgan. Utah,
Do, relied upon by the defense, IS not IN
point IL can readily be distinguished
| There the affidavits filed in support OF
the second motion for a new trial showed
that two Of the jurors who convicted the
( ] accused had previous TO the trial formed
! and EXPRESSED unqualified opinions dQ-
verse TO the defendant, and that they
were preiudiced and acted under the in
20 | fluence and bias i'm the considerable OF
I I the question Of his guilt. although when
! ! they We're examined upon their VOir dire
they answered that they had neither
l formed nor expressed an opinion as 10
/ the guilt of the defendant Nor were Ihe
E | matters set ont in the affidavits in that
! case before the court at the first trlal'
! nor were they I'm the record on the fist
u | appeal I'm fact. as appears from the rec
I ord. the contents of the atfdavius were
% | not known TO either tho defendant or his
attorneys until after the Judgment had
! been affirmed by this court. As has been
l shown here it is otherwise
1t Is plain to be seen that II such an
Z maintained it would be difficult if not I'M
= | possible TO fix any stability to a verdict.
/ Suppose we were to hold this appeal Well
| taken and were again TO affirm the 1or-
Y ! mer Judgment could not counsel again
i as in this instance. appear in the lower
r. | court interpose a third motion Tor a new
]. l trial uuOn some of the same grounds that
, | were contained iu the former motions and
= / support the motion by another set or AZ
% Z fidayits which would show stlu more
N / fully the matters previously ruled upon
Z ! and. upon tine motion being overruled,
b, / again appeal to this court, and thus re-
/ litigation and defeat Justice at their mere
| pIeasure2 To state the proposition con-
: tended for in this case is sufficient 20
condemn and reject it.
We are Of the opinion that this appea
should be dismissed. our former judgment
/ remain undisturbed and the application
4 I for a certificate OF probable cause denied.