Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-11-10

-.- - -
duct imputed to him In the anldavlts
OF Atty stewart and juror Alma II
Rock, he was guilty of tho most pail
pable violation Of the order OF the court
and Of the oath he took when about 60
conduct the Jury TO view the premises,
YOUNG WAS SNOWMAN.
Mr. Young pointed out to the Jury
the place IN Mortensen's cellar where
the money was supposed to have been
kept lie pointed out the spot on the
railroad tracks where he had seen blood
and where he supposed that Hays
body fell and rolled down the embank-
ment lie also gave the jury his version
or how the body was thrown over the
fence aud carried TO the grave and told
OF the footprints I'm the snow, leading
70 and from the grave the morning the
body was discovered He said that It
was his opinion that the grave az orig.
inally dug was too short and the man
VINO committed the crime had taken a
shovel and scoOped out the west end
OF II and showed the head Of the dead
man In under down 10 the shoulders.
He also told the jury OF Mortensens
conduct NJ the grave when the body of
Hay was found, II IS absurd to claim
that this was not evidence other than
mat resulting from the view Of the
premises and that IL was not prejudlcial
10 the interests OF defendant when
Mr. Young could not answer the uuos-
lions of the Jurors himself, he procured
other persons who could. | am of the
opinion that the learned trial Judge was
clearly In error when he overruled de-
PENDANTS second motion for new
trial.
NOT ACCORDING TO LAW.
Nov, IN the case at bar the applce.
ton IS not made upon the ground spe-
cttcally, that an impartial Jury had
not been secured for the trial or that
the defendant Is probably innocent hui
1t IL made upon the ground. and IA es-
tabllshed, In my judgment, beyond rca-
sonnble controversy az the alilaVits
he taken AS proving what 0ccurrsd)
mat tho jury received evidence out u
court and In the absence OF the de-
PENDANT and his counsel and to refuse
to grant new trial under these cir.
cumstances is TO deny what the ConstI.
tuition guarantees explicitly 20 every
man accused Of crme-namely that n,
shall be present whenever evidence ia
given against him. This guarantee ex-
tends not only to the innocent. but the
guilty.
Society In Utah has the right to in
ilict capital punishment upon one who
has been guilty OF murder only after
trial I'm which every constitutional
and statutory right has been enjoyed by
the defendant and he has then been
found guilty. II a single constitutional
RICH has been denied him he cannot
De legally executed There Is no Diff
ference In principle between punshlng
a man with death without trial. and
furnishing him with death after a trial
In which he has not enjoyed the rights
given by the Constitution and statutes
70 all persons accused OF crime n one
constitutional right may be withheld
all NAV we withheld and II all may be
withheld. then lynching Is tusunahle
whenever II Is proven that the victim
OF 1t was In fact deserving OF death.
GUILT OR INNOCENCE PASSED.
81 have no opinion to expires In re-
spect TO the guilt or innocence Of the
accused, and in the distribution OF the
matter presented TO this court upon this
second appeal the question OF guilt or
innocence Is clearly an immaterial con-
sideration.
IAN examination of the afrdavits set
out above makes It clear beyond req
sonab'e doubt that n the facts thereln
stated are true the defendant has been
deprived Of one OF the most essential
safeguards provided by the Constitu-
ton for criminal trials. IL cannot be
doubted that Justice must frequently go
astray and that the law Itself will be-
come an object OF contempt II Jurors
charged with the deliyerance Of ver-
dict between the state and the de-
PENDANT I'm capital cases, are permitted
10 receive evidence out OF court. away
from the Judge and the prisoner and
his counsel II does not matter wheth-
err they receive much or little. II they
receive any their verdict should be set
aside and new trial awarded without
hesitation.
Knowing as do, that the defendant
was convicted on circumstantlal evi-
dence. when nothing was admitted, and
wherein no evidence was offered on be-
half OF the prisoner Except some evil
dence tending 10 imneach the motor
man. Allen, and believing that the evil
dence given by Royal b. Young, who
was witness for the state on the
trial and who says he believed the a.
PENDANT guilty, not only may have
been, but unquestionably was preiu-
diced, ! am compelled 10 dissent from
the order dlsmssng the appenl herein.
The proper order, in my Judgment is
that the case should be remanded with
directions to set aside the order over
ruling the motion for n new trial and
10 permit counsel for defendont IN eX-
anime the said ROYAL y Young toush-
ing the matters set forth In the aflida-
Wits and thcreupon grant or refuse tho
motion as the facts REQUIRE"