Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-10-29
TAKEN UNDER ADJUSTMENT.
Attorney General Breeder Made Practl-
eally No Argument at all and Only
Spoke Briefly.
RELIED ON MOTION TO DISMISS
On the Other Hand the Defense Claimed
That Mortcnsen Had Not Received
An Impartial Trial..


The final plea before the supreme
court in behalf OF Peter Mortensen, the
condemned murderer of James II. Hay,
who is sentenced TO be executed on
Nov. 20, was made by Atty. Barnard j.
Stewart this morning when he argued
the second appeal Of that noted case
20 the supreme court and made an elo-
uuent and forcible appeal for new
trial for his client. Mr.. Stewards argu-
ment was telling in the extreme and al
times was delivered in very dramatic
manner. Atty.-Gen Breeder made
practically no argument at all but
stated that he would rely upon his mo-
ton to dismiss the appeal and would
throw the burden upon defendant to
show that the case had standing in
this court
District Judge Mar!oneaux sat upon
the bench in the place of Associate
Justice McCarty, who was detained at
his home owing to sickness in his FAM
fly. only few spectators were pres
ent In the court room while the case
was being argued. The only deeply in
terested spectator present was Peter
A. Mortensen, an uncle OF the con-
demnod man, who resides at Riyerdale,
Weber county Mr.. Mortensen sat d.
rectly back of Atty Stewart and APP
peared very much interested In the
arguments
TAKEN UNDER AMUSEMENT.
AT the conclusion of Mr. Stewards
argument, which practically consumed
the entire morning session, the court
took the case under advlsement. It
is very probable, however, mat an
opinion viii be rendered ~ the court
IN n few days, so that It win be
known whether or not the defendant
win be executed on the date set.
MOTION TO DISMISS.
When the case was called Attorney
General Breeder stated that he had
tiled motion to dismiss the appeal,
which is as follows,
Now comes the state of Utah, by its
Encouragement and moves the court
to dismiss the appeal IN the above en-
titled cause, now pending In this court,
on the ground that this court has
passed upon every question presented
IN this appeal, on a former hearing In
this cause; and that there Is no new
ton for new trial. from the over
ruling OF which this appeal is taken"
RELIED UPON MOTION.
'As far as. the state Is concerned
said the attorney general II desire TO
rely entirely upon the motion and
throw the burden upon the defense to
show that the appeal has a standing in
this court. / take 1t that this court
VIII not consider for one minute the
Hlildavit OF Juror Rock, filed by de-
fendants attorney, for the reason that
Juror cannot impeach his own YER
dict. At the former hearing before
this court the question Of misconduct
of the jurors was passed upon; now this
second appeal raises the same question
and atiidavits OF one of the jurors and
the attorney for the defendant are flied
IN support Of It, These aiiidavits
merely go further into detail upon the
question of misconduct OF the jury and
contain nothing hut what has been
passed upon before by this court, Even
II the same matters were not passed
upon directly by the court. they are not
OF such character as 10 warrant
new trial, The state * opposed to these
dilatory motions which have been fled
IN this case and Is of the opinion that
the litigation should stop somewhere
ARGUMENTS FOR DEFENSE.
Attorney Barnard j. Stewart
proceeded to argue the case
upon its merits He read the lnstruc-
lions given by Judge Morse to the
special officer Royal u. Young, In
regard to showing the jury the prem
lses whore the crime was committed. He
then read the second motion for n new
tfial, upon which this appeal Is based,
setting out the alleged misconduct Of
the jurors while visiting the premises
and also the refusal of Royal y. Young
10 make affidavit OF such conduct.
THE AFFtDAVITS.
On the hearing Of the second motion
Tor new trial." continued MIR. Stewart,
submitted the affidavit of Juror Al
ma H. Rock In regard to the miscon-
uuct or the jury and also my affidavit
containing statements which ROYAL b.
Young had made to me concerning the
same | attempted at the hearing on
tne second motion FOR new trial to
pace Royal h. Young on the witness
sthnd and examine him as 10 the con-
quot OF the jurors. That privilege was
dehlad me and l did the next best
tnlhg' secured the affidavit OF Mr..
Rock the only juror who would make
an aihdavit, and | also made an air.
uaNlt myself as TO what Mr. Young
ed upon the first appeal. Thege afn-
davits | contend, contain entirely new
matter and they stand here uncontra-
dicted"
ROCKS STATEMENT READ.
The attorney for defendant then read
the affidavit OF Juror Rock, which set
OUT that the Jurors had measured dis
lances, and that Mr.. Young had made
statements to them about the various
points connected with the scene of the
crime which We're not testified to al the
trlal OF the case. Mr.. Stewart then read
MS own affidavit which contained state.
menis made by Mr.. Young to aniant
ABOUT the misconduct of the jury,
which, II was claimed by the attorney
ior Inc defendant, was prejudlcial TO
me interests and rights OF defendant.
Mr. Stewart stated that he desired to
read the aiiidavIts In full so as to show
that there We're matters In this second
motion for new trial which