The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1903-11-10
SAYS EXECUTION
WILL BE ILLEGAL
So Holds Marionsaux, Dissent
ing in MOTtsEssn Case.
ENTITLED TO A NEW TRIAL
SAYS YOUNG SHOULD HAVE
BEEN MADE TO TESTIFY.

Friday. Nov. 20, it viii be done
Illegally, according to the dissent
ing opinion handed down late yester-
day BY District Judge Thomas Marion
eauN I'm the state supreme court. He
takes the stand that Judge Charles w
Morse, in the criminal division of the
district court. erred when he refused
20 compel Royal 3. Young 90 take the
stand I'm the second application f6r a
new trial. and compel him 10 testify
as 70 the correctness of the alleged
misconduct Of the trial jury when it
visited the scene OF the. crime.
Judge Marioneaux holds that 90 the
facts set forth in the afidavits cf
Juror Alma II. Rock. Attorney Is. j.
stewart and MOrtensen touching uDon
The alleged misconduct Of the jury un-
on that occasion, are true as sworn 10.
a grave error has been committed bv
the supreme court I'm not granting the
defendant a new trial. He takes She
stand that the condemned man has
not had fair trial. as he iuterprets
the state constitution. and THAI
IF ne is executed q week From Friday.
he goes TO an Illegal de7tn
Says Both Courts Er7sd.
The Judge does not take The send
that the testimony of Mr.. Young wtT71
suhstanuate the allegations set fCrtil-.
in the three amdavits. but holds that
it was the duty of the district court 10
compel him TO go upon the stand and
tell what did transpire when the Jury
visited the premises, and that the SUI
preme court committed an error when
II concurred I'm the ruling OF Judge
Morse. ana did not reverse him. and iu-
struct the trial court 90 place the
special officer OF the court upOn tle
witness stand I'm support or The last
motion for a new trial After air.
Young had taken the stand. and given
his testimony as 20 what the Jurors
did, and what was said To them rel-
ative to the case, DO was then the duty
of the trial court 10 determine whether
improper evidence had been adduced
during the absence of tho court. att
tOTueys for both sides and during The
absence Of the defendant himself
No expression or guilt or innocence
as TO the guilt of AIortenseu Is limited
at by Judge MariOueauX. He simply
declares that the defendant has not
had a fair trial, and gives his rea-
sons for so believing.
The opinion. which was handed down
at 4:45 o'clock yesterday afternoon. is
twenty-three pages Ions To opens
with the following emphatic state
ment:
Didn't Have a Fair Trial.
'I dissent from the majority or the
court On cisrni ss il the .defcnll e. 10y
peal from the Judgment of the Iowc-
court I do so because it is clear 10 me
beyond reasonable controversy that he
has not had such a trial as the con-
sutuuOn Of Utah guarantees 20 every
person accused of crime"
Then the judge reviews the crime.
as revealed by the evidence submitted.
and gradually reaches the point where
Mr.. Young was appointed special
official Of the court to conduct the jury
to the scene Of the crime. and details
what was alleged 10 have taken place
there fin the presence of Mr.. Young.
Referring TO the conduct of the lat
ter, he says that he was guilty OF the
most culpable violation Of the order
Of the court and Of the oath ne took
when about to conduct the jury to
view the premises" Commenting upon
the visit Judge MariOneauN says that
the Jury did receive of Royal b.
Young out of court, evidence other
than that resulting from view OK
the premises"
After arguing his position at length,
the judge concludes with the follow
ing:
Evidence Out Of Court.
''Now. in the case at bar the applica-
ton is not made upon the ground, spe-
cidcally, that an impartial jury had
not been secured for the trial. or that
the defendant is probably innocent but
it is made upon the ground. and Isl es-
tablished, in my judgment. beyond rea-
sonable controversy Gf the ahdavits
be taken as proving what Occurrec)
that the jury received evidence out OF
court and in the absence of the. de-
PENDANT and his counsel. and 20 refuse
TO grant a new trial under these cir
cumstances is to deny what the constl-
tuition guarantees explicitly 20 every
man accused Of Crime-namely. that he
shall be present whenever evidence IS
given against him This guarantee eE-
tends not only to the innocent, -. chg
guilty.
Society in Utah has the right to in
hicJ capital punishment upon one who
has been guilty OF murder only after
a trial in which every constitutional
and statutory right has been enjoyed by
the defendant, and he has then beer
found guilty. IL single constitutional
right has been denied him he cannot
be legally executed. There is no diff
ference In principle between Furnishing
a man with death without trial. and
Furnishing him with death after a tria,
in which he has not enjoyed the rights
given by the constitution and statutes
to all persons accused OF crime. III one
constitutional right may be withheld
an may be withheld. and if an may DE
withheld. then iyuching is iustifable
whenever iu is proven chat the victim
of it was in fact deserving Of death.
Guilt or Innocence Passed
ct have no opinion 10 express in re-
spect TO the guilt or innocence Of the
accused, and I'm the distribution OF the
matter presented 20 this court upon this
second appeal the question of guilt %.
innocence is clearly an immaterial con.
sideration.
An examination Of the ahdavits Sc.
out above makes liz clear, beyond rea.
sonable doubt. that If the facts therein
stated are true. the defendant has beer
deprived of one of the most essentia.
safeguards provided by the cOnsutu-
ton for criminal trials III cannot bt
doubted that justice must frequently So
astray and that the law itself win be-.
come an object of contempt IL jurors
charged with the deliverance Of a yer.
dict between the state and the De.
PENDANT in capital cases. are permit1at
to receive evidence out Of court awaI
from the judge and the prisoner ant
his counsel. It does not matter Thcth-
er they receive much or littla III they
receive any their verdict should be sci
aside and a new trial awarded without
hesitation.
knowing. as do. that the defendant
was convicted ou circumstantial eyi-
dence. when nothing was admitted. aHd
wherein. no evidence was offered on boz
half of the prisoner (excert some cfi-
denCe tending 80 impeach the motor
man, Allen, and believing that the eti-
denCe given b1. RuVnI q Eounr -r1n