Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-09-11
CERTAIN ERRORS ARE ALLEGED.
Particular Stress Laid Upon Actions Of
Certain Jurors In Making Meas.
ufements.
DISPUTE AS TO ORAL TESTIMONY.
Attorneys for Defendant Contend that
Error Was Committed in Rul.
ing il Out.

Stewart & Stewart, attorneys for Pc.
! ter Mortensen. this afternoon filed In
the supreme court a petition for re-
hearing alleging certain errors on the
part Of the court In allowing to be In
PRODUCED certain testimony alleged to
be preiudica to the interests OF the
/ defendant, and In ruling out certain
oral testimony OF great Importance to
the defense,
In the frat place It Is alleged that the
court erred in It's opinion In holding
that the jury while viewing the prem
ises Of the defendant and the surround
| ing territory, during the trial OF the
defendant were not guilty OF mlseon-
| duct, prejudicial 10 the rights Of the de-
PENDANT, by which fair ana due con-
! slderation Of the case was presented;
/ and further, that the court erred in
| holding that the lower court did not
! commit error In refusing to allow the
defendant to Introduce oral evidence in
support OF the motion for new trial.
| IT appearing from the records that
/ there was misconduct ana that on ac-
| count Of the prejudice and strong santl-
incnt against the defendant, officers
who alone possessed the knowledge OF
the misconduct, had refused 20 mike
/ voluntary affidavit, bur Were in court
/ on the day Of the hearing ready to tes-
/ tlfy II the court 80 ordered
I In their uotitiop tho uftygpaNa
| peat the ailidavits of Barnard j. Stew
! art and Henry Mortenscn with regard
! 10 certain measurements made by GER
| taln Of the Jurors while viewing tho
! premises OF Peter Mortensen, also With
| regard 70 certain alterations ana I'M
provements male by said Henry Nor
Jensen on the premises of the sbid de-
! fcndant shortly after he was taken in
| TO custody on the charge against him,
| which ailidayits were practically ig-
nored by the court, ip that the request
| 10 put certain officers on the stand for
| the purpose OF testlfying as to these
| things was not allowed The petition
| Guhmlts with all due Difference to the
| court that the defendant and the bar
| Of tho state are entitled to know under
| what circumstances, II any, oral evil
dence may be introduced In support OF
motion for new trial on the grounds
Oh MISCONDUCT vi Alit part VI ANN July
I'VE would like to know" II continues,
whether or not there was any mis-
conduct, why II ala not yitiate the
verdict"
The petition further recltes article
1, section i2 OF the Constitution OF the
State of Utah Is as follows In Grim
lnal prosecutions the accused shall have
the right to appear and defend In per-
son and by counsel, to demand the ma
ture and cause of the accusation
against him, to have a copy thereof, to
testify in his own behalf, to be con-
fionted by the witnesses against him
10 have compulsory process 10 compel
the attendance Of witnesses IN his own
behalf, to have a speedy public trial
By an impartial jury of the county or
district In which the offense Is alleged
90 have been committed, and tho right
TO appeal in all casos, In no instance
shall any accused person, before nna
Judgment, be compelled TO advance
money or fees TO 8ocure the usnts
herein guaranteed. Tho accused shall
not be compelled TO testify against her
husband nor n husband against his
wife, nor shall amy person be twice put
In jeopardy for the some offense
Article l. section 60 Of the Constitu.
ton Of the State OF Utah Is as follows;
The provisions Of this Constitution are
mandatory and prohibitory, unless by
express words they are declared to be
otherwise
Section 20, article OF the Constl-
tuition clearly points out that the pro-
visions of section - OF the game article
are mandatory unioS5 by express words
they are declared to be otherwise.
There were no express words In section
IL which indicated OF suggested that
the right OF the defendant TO be con
fronted with the witnesses who should
testify against him arc permissible or
can be waived. hut on the contrary II
appears that such right Is mandatory
and cannot be waived, We respectful
~ submit thnt under these two nroN.s-
ions Of the Constitution the testimony
OF John G. sharp, which was stipulated
into the record and considered by the
fury in arriving at o verdict against tho
defendant WINS unconstitutional ond the
right 10 be confronted by the witness
was n constitutional right, mandatory
and which could not be waived by the
defendant or his council Our Constl-
tuition IS peculiar IN this respect and
the decisions Of other states which have
not this provision IT, the Constitution
cannot anply with force "a the existing
loW In this state Wo respectfully In
vlte the courts attention 70 this pro-
vision IN considering this motion Cor
rc-hearnR"
Concluding the petition recItes 1--WE
nubmit that a re-hearnF should be
granted I'm this case an all points that
n new trial should be granted Cr n
tho court denies q new trial at this rnr.
Ucular time We submit thar the de-
ferdaut should No granted new heor.
lrJ before the district court on hls mo
tIon for n new trial and that NJ said
hearing defendant he permitted 10 IN
troduce oral evidence or tho miscon-
duct on Tho part az tho jury In sup
vnrt ~ hfa t~nst,,,