Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-09-25
CLAIMS He HAS new EVIDENCE.
Juror Rock Makes Affidavit of the Visit
To Forest Dale and Tells What
Took Peace.
WILL THE COURT CONSIDER IT.?
Supreme Court Has Ruled that Juror
Cannot lmpcach His Own Testl-
mony--Iomorrow viii Tell

Attys Stewart 4 Stewart this morn
ing filed "A motion In the district court
for a new trial in behalf OF Peter Nor
| Jensen on the grounds of newly dis
covered evidence and alleged miscon-
| duct of the jury. The motion is sup
| ported by the affidavit OF Alma II.
| Rock, one of the jurors in the case. IN
| which he states that the jurymen meas
ured on various distances while view
ing the scene Of the murder and were
shown by Royal b. Young, who was
IN charge OF them, the spot where Hay
fell on the railroad track after being
shot and also where his body rolled
down the track embankment. Such
matters, II Is claimed by the attorneys
for Mortensen, had their effect upon the
Jurors and were prejudicial to defend
ants interests
In addition TO the affidavit Of Rock,
there Is also the affidavit OF B. j. Stew
art, one OF defendants attorneys, in
which he stated that he had used due
diligence In the search for newly dis
covered evidence, and that the facts set
forth In Rocks affidavit were not
known TO him until Aug. 2S, 1908 Peter
Mortensen also makes AFFIDAVIT tot the
effect that he was first informed Of
the newly discovered evidence, as set
forth In Rocks affidavit, on Sept. 49,
1903. Both of these affidavits are also
attached TO the motion for a new trial.
REsENTENCED TOMORROW.
Tomorrow morning Mortensen will
appear before Judge Morse to be re-
sentenced, and IL is believed that the
motion for a new trial will be disposed
Of at that time. There is much discus
sion as 20 whether or not the motion
for new trial is barred by the new
act OF the session laws OF 1908 which
provides that a motion for a now trial
upon the grounds of newly discovered
evidence shall be made ayithin so days
after the verdict has been rendered
Should Judge Morse holf that tho mo-
ton is barred, the attorneys for defend
ant viii probably ask for a writ of
probable cause Of appeal, and II Judge
Morse REFUSES 10 sign such a writ an
attempt VIII be made TO get a mem
Der OF the supreme court TO sign. A
failure In that attempt would exhaust
the resources OF the defense and moth.
ing more could be done.
CANNOT IMPEACH.
The supreme court has decided In n
previous case that juror cannot i'm
peach his own verdict, so there is con-
siderable question as to the standing of
'he present motion for that reason.
THE MOTION.
The motion and affidavit as filed to-
day follow In full:
10 the State Of Iftah
Eichnor, District Attorney; and
each OF you are hereby notified tbat
the defendant Will file motion for A
new trial IN the above entitled action.
on the grounds that the jury who sat
IN the above entitled cause received
evidence out Of court, other than that
resulting from q view OF the premises
and communicated with the officers and
outside parties and discussed the case
among themselves, contrary and preju-
diclal TO the rights OF the defendant,
ana that the jury were gunty Of ms
conduct, by which n fair and due con-
sideration OF the case was prevented
and upon the grounds OF newly dlscov-
cred evidence material 10 the defendant
ana which he could not, with reason
able diligence have discovered and
produced at the time Of the trail n
copy OF which motion Is attached II
this notice and made part hereof.
The motion for a new trial Will be
made upon the minutes OF the court. tho
files. transcript records Judgment roll
and stenographic report of the testl-
mony ana proceedings already trans
cribed and certain testimony and pro-
ceedings to be transcribed and win also
be based upon aiiidayts to be filed and
also ailidavits filed at the time of the
service of this notice and motion for
new trial"
WHAT MORTENSEN. SAYS.
Comes now the defendant, Peter Nor.
Jensen, and moves the court TO vacat,
the hndings of judgment and verdict
rendered and entered In the above en-
Titled cause and to grant the defend |
ant new trial therein and for the fol- |
lowing reasons and upon the following |
grounds to-wit:
First-That the jury during the trial |
of said cause and while viewing the |
premises received eridence out OF the |
court, other than that resulting from |
a view OF the premises and received |
communlcR tons from outside sources
and consulted among themselves and |
with the officers who had them In
charge about the case, contrary to the
instructions OF the court and contrary
to law, and prejudlcinl to the rights of
the defendant
Second--That the jury while viewing
the premises were guilty OF misconduct.
by which a due and fair consideration
OF the case was prevented.
Third That new evidence has been
discovered material to the defendant
and which he could not with reasonable
diligence have discovered and produc-
ed at the trial nor prior to the filing
Of this motion.
Wherefore. defendant asks that a new
trial may be granted in said action.
Dated this 25th day Of September.
1903 STEWART & STEWART