Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-10-31
new TRIAL DENIED ONCE MORE.
Supreme Court Again Declines to 10.
terferc With the Judgment of
The Lower Court

victed by jury In Judge Morse's court
In June, 1902. The opinion OF the court
was written by Justice Bartch and con.
CURED in by Chief Justice Baskin
Judge Marioneaux, who sat on the
bench In the place of Justice MeCarty
upon the hearing of the second appeal
last Thursday dissents from the opIn-
ion OF the court and will prepare his
dissenting opinion In few days,
sUsTAINs BREEDEN's MOTION.
The opinion Of the court sustains the
motion TO dismiss the appeal, as pre-
scented by Atty. Gen. Breeder, and or
ders that the former judgment OF the
court remain undisturbed and the ap-
pllcation for a certificate Of probable
cause be denied In view Of the fact
that the board OF pardons does not
meet until the day after the date OF
MortenseDs execution. Il Is not likely
that an appeal for communication OF
sentence VIII be made, as the onlY way
II could possibly be brought before the
board IN time would be to have spe-
cial meeting, and such an arrangement
seems improbable.
MARIONBAUx DISSENTED.
In speaking OF the his view of tho
case, Dist Judge Marloneaux said
II dissent from the entire opinion. |
believe that new trial should have
been ordered or the case should have
been remanded 20 the trial Judge, with
instructions to hear the oral testimony
Of Royal d. Young. IL il evident that
Mr.. Young has a story TO tell and !
know Of no rule OF law which would
prevent him from being required 10 tell
1t. Then the state would have the OPP
portunity TO rebut II. II there should be
anything IN It requiring rebuttal l
have not had ime o prepare my DIS
SEEMING opinion, but I hope 10 have II
ready In few days
THE OPINION.
The opinion OF the court follows in
full:
Barch, j.
This case was before Us on a former
occasion, on appeal from the Judgment.
after a motion for new trial had been
overrued. We then. upon very careful
examination OF the whole record, and
upon such discussion Of the various
questions OF law presented and inyolV-
ed, as we then deemed necessary and
Important, affirmed the judgment and
remanded the case TO the trial court
for further proceedings according to
law. rs Pac. Rep b62.
Soon after the remittltur was sent
down. the defendant fled another mo-
tion for new trial, Upon the hearing
the court overruled the notion and,
ii A.t .Nf 1Nr In ha
degree. sentenced the defendant to be
executed, on Nov, 20, 1908. Therupon
he again appealed 10 this court from
the Judgment. assigning as error the ac-
tion OF the court IN everything his sec
ond motion for n new trial. The trial
court upon application therefor, refus-
ed to grant the defendant certificate
OF probable cause, and that matter Is
also before us,
The state has challenged the stand
ing OF the appellant In this court by
motion to dismiss the appeal, upon the
ground, as stated In the motion, that
this court has passed upon every ques-
ton presented in this appeal, on a for
mer hearing OF this cause and that
there is no new matter presented on
the second motion for new trial, from
the oyeruing OF which this appeal II
taken"
After careful examination Of the affl-
dayits and matter presented IN support
OF the motion for a new trial, which
motion forms the basis for this appeal.
we are OF the opinion that the motion to
dismiss Is we'll founded,
The questions presented on this APP
peal relate to the alleged misconduct OF
the jury, while viewing the premises
where the homicide was committed
and TO the refusal OF the court to re-
qulre the officer who had charge OF
the jury at the request Of the defense
to give oral testimony concerning the
alleged misconduct OF the jury, which
testimony was 70 be used In support
of the motion for new trial, instead
OF an affidavit. These same questions
were presented on the former appeal
We're considered by us with much care,
and decided adversely to- the defendant
although without extended separate
discussion OF the particular points.
Counsel Cor the defense, however, i'm
slst that the affldayits in support of tho
motion for a new trial now disclose
material facts, prejudlclal to the rights
OF the defendant, which were not pre-
scented to the court in support OF the
former motion,
We perceive nothing in the present
~
is true the former aflidavits did not
present so much In detail tho alleged
misconduct as do those now presented.
but. at the hearing OF the former mo-
tlon, In addition 10 the affidayits then
presented, counsel for the defendant
made 10 the court an offer OF what he
proposed to prove by the oral test-
mony Of the offer. as contained In 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 tho afIidayits,
as shown by the record OF proceedings,
appearing In the former abstract, which
record 80 far as material here. reads,
"'rhe Court--The court does not un.
defstand the offer Al this time you
are asking 10 have that statement be-
come part OF your affidavit, and sworn
to as being true by you
"Mr J. y. Stewart-i Wish TO have
the statement which | have made, with
reference TO the testimony that desire
to put In. the proof and the facts that
have been set forth as being able TO
prove by Royal II, Young-I say | wish
to have that statement considered IN
connection with the affidavit which was
heretofore illed. Like the record 10 40
show, that desire to have that Incor-
porated.
1.-THE Court-The court will consider Il
in connection with your afldavit.
Mr. J. h. Stewart--So that Il may
become part OF the record2
1.-THE Court~~lt Is q part OF the rec
ord certainly"
Upon examination and comparison. II
will be seen that the proposed testi-
mony thus presented IN an offer and !