Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-10-31
Cstarh May Attack Any ORGAN Of the

received, TO be considered by the court
In connection with the matter contain
ed In the affdaVits, IL substantially
the same as the matter con-
tanned in the present afiidavits.
In so far as the alleged material facts
are concerned.
Tho afiidavits, now relied upon, sim
ply present the conduct OF the jury,
while viewing the premises more In
detail, and show more minutely OF what
the alleged misconduct consists. This
seems to be admitted by counsel for
the defense in their brief filed on this
appeal, when, after stating what they
claim to be the substance of the affi-
davits, filed IN support OF the former
motion for a new trial. they say; The
present afildaVits show more fully of
what the misconduct consisted"
There is no claim that any of the
Jurors were biased or prejudiced against
the accused, or that any Of them had,
before they were called as Jurors In
the case, formed or expressed an opin-
ion as to the defendants guilt.
From a perusal OF this record, the
conclusion is irresistible that no right
TO second appeal has been shown.
The same questions, now presented.
having been before this court on the
sldered and decided. on that occasion,
under facts OF the same character, they
must now be regarded as res Judcata.
This appeal IL IN effect an appeal from
our own judgment. and must fail. II
cannot be maintained
The case OF State vs. Morgan, Utah,
212, relied upon by the defense, Is not
In point. II can readily be distinguish
ed. There the nfildavits filed In sup
port OF the second motion for new
trial showed that two OF the jurors
who convicted the accused, had previ-
Gus 20 the trial formed and expressed
unqualified opinions adverse TO the de-
PENDANT. and that they were preJudiced
and acted under the influence and bias
IN the consideration OF the question OF
his guilt, although when they were ex-
amined upon their voir dire they an
swered that they had neither formed
nor expressed an opinion as to the guilt
OF the defendant. Nor were the mat
ters set out In the aflldavits in that
case before the court at the FIRST trial;
nor were they In the record on the first
appeal, In fact, as appears from the
record, the contents of the 0tlidavts
were not known TO either the defendant
or his attorneys, until after the tudg-
ment had been affirmed By this court.
Ad nus DttH sHpNH utie IL ~ VNhNi-
wise.
IL is plain to be seen that II such an
appeal as is here attempted, could be
maintained II would be difficult, II not
impossible, 20 fix any stability 10 II
verdict Suppose we were to hold this
appeal well taken and were again 20
affirm the former judgment, could not
counsel again, AZ In this instance, APP
pear In the lower court interpose a
third motion for new trial upon some
OF the same grounds that We're con-
talned IN the former motions, and sup
port the motion by another set OF aili-
davits which would show stlll more
fully the matters previously ruled upon,
and, upon the motion being overruled.
again appeal TO this court, and thus
repeat the process, ad inhnltum, prolong
litigation, and defeat justice at their
mere pleasure? To state the proposition
contended for IN this case, is sufficient
10 condemn and reject II.
We are Of the opinion that this APP
peal should be dismissed, our former
Judgment remain undlsturbed, and the