Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1903-08-13
ACKNOWLEDGEMENTS
ACCORDING TO LAW
SAYS ElCHNOR.

I In speaking Of the opinion OF I
! 4 the supreme court today, Dist. J.
+ Atty. Eichnor. who conducted the I
! J. prosecution Of Mcuensen said: !.
4 The opinion is in accordance I
]. with the law, the facts la the !.
+ case and renders Justice to the I
!. people Of the state, !.
sion Of this testimony ana OF the re-
fusal 10 charge in the language re-
! quested and Insists that the c0ut ought
/ 10 have stricken out all such evidence
! on It's own motion, This. ind ed is
bold attempt 90 shift the responsibility
! for the Introduction OF what the appel.
ant now claims to be improper evidence,
upon the court II rs case, unique, II
! seems, In criminal procedure, whore the
defendant seeks a reversal of a judy.
ment against him. because Of tesi-
| mony which he himself brought into
! the record, and this as appears, by IN
| sisting upon answers to numerous ana
repeated questions. which the witness
seemed unwilling to make.
| Whether or not the testimony, m
| question. viewed IN the LIGHT of the
| other facts In evidence, was inadmis'i-
| bic, It is not necessary TO determine II
/ Is sufficient to say that such practise
! on the part OF the defense I'm the tr,d
| of an action can not be upheld. II
| permitted Il would be- an easy matter
| for an astute or scheming counsel In
| any criminal case on behalf Of the
a a 81 fat
| the record which would imperil the
verdict Obviously, under such prac-
tise, 10 fix any permnuency 10 a
sible, to fix any permanency TO a
verdict.
Where as In this instance. defend
ant, in a criminal proceeding injects
Illegal evidence, or suffers nadmlssible
evidence TO be received without 0bjec-
ton, he cannot afteTWard insist upon
reversal Of the case upon that ground
and II upon examination. he asks
questions calculated to elicit improper
or inadmssble testimony, he must be
content TO take the answers. I'm such
case he viii not afterwards be heard
to complain OF that for which he was
himself, irresponsible. and which resulted
from his own acts.
"One who permits says Mr.. Bishop.
illegal testimony to be given TO the
jury. as shown by his making no OBJ
lection 10 Il, cannot nfterWard claim
any privilege ON account Of its admis-
sion. Bishop Grim Law. soc 9gl
In Jacobs VS. Bangor. lG Me lS1. II
was held: where irregular or mad
mlsslbp testimony has been received at
trial. without objection that Il was
considered by the Jury affords no just
cause for q new trial
SO in Bishop vs. state, 9 Ga, l2l, Il
was said 1T VIII never do to permit
prisoner to hear Illegal testimony
without objection, and then assign It's
introduction as error, by such indul-
genee, advantage viii always be taxi
en- AZ the prosecution
We are Of the opinion that the action
of the court respecting the evidence. In
question. and the requests TO charge,
can not avail the appellant In his ef-
forts 10 procure a reversal OF the iudg-
ment and new trial
Nor do we concur with the conten-
ton OF the appellant that the state
ments made by prosecuting counsel,
which are assigned as error, are such
as 20 warrant a reversal Viewed IN
the light Of the facts and circum-
stances disclosed by the evidence. they
are not Of such character as to justify
the setting aside OF the verdict Of the |
Jury. While a counsel for the prosecu.
ton should at all times be circumspect !
In summing W the case for the jury, |
and at no time should be unmindful of |
The fact that II Is as much his duty |
under ms oath 10 shield and protect |
the innocent as 20 punish the guilty
9tlll he has right to employ such LAM |
guage la the discharge OF that sacred |
duty, as the facts and circumstances |
~ evidence and proper conception Of |
right and wrong may dictate and war |
rant.
Nor do we think the court erred In |
ovorruling the defendants motion for a |
new trial. or in refusing under the |
circumstances aud the practise within |
THIS jurisdiction, TO permit the defense
TO introduce oral evidence In support |
Of that motion.
Other questions have been presented
herein, aud We have examined an OF |
them With care, but have found no |
reversible error In the record
1.-THE judgment must. therefore. be
affirmed and the cause remanded for
further proceedings according TO law"
MCARTY ON REVELATION.
Justice McCarty also handed down
an additional opinion on the question
OF the revelation Of witness James
sharp IN which he conCirred IN the
orinion Of Justice Bartch and advanced
other grounds Tor his concurrence OF
that point.
a NOTED TRIAL.
The trial Of Peter Mcrtensen was one
the longest and most noted criminal
action In the state. District Attorney
Dennis G., Eichnor prosecuted the case
~ very able manner and the defend
ant was equally as ably represented
by Attorneys Charles b and Bernard
stewart The trial was commenced be-.
fore Judge Charles W. Morse ON Mon !
day May 3. 1902 aud on May %. nearly
a month after the commencement Of !
me trial The jury was completed.
There were l0j5 Jurors summoned. gO5
on the regular and special yenires ana
l'l on an open yen.re. Of this to-
tal number so passed their volr dire
examination ana were examined for !
cause 10y ooth the state and defense.
THE JURORS.
me ~ jurors nually secured 20 hear |
the evidence, and who. on June a. re-
turned q verdict finding defendant
guilty are. Joseph Smith. samuel
II r. shuruin. James NJ. /
BARLOW, Sterling r. lie Roy. Henry /
Tribe Michael Kopp nov deceased
William A. BINS John T. Alexander.
Charles u lngham. Jr. Alma II Rock
and John y. Daley
HISTORY OF CASE.
on wednesday, Aug g. Judge Morse
oyegfulcd DEFENDANTS motion for a new
trial
ON Tuesday. Sept @. 1902. Judge
Morse sentenced the defendant 10 be
shot on Friday, oct l1. 1902.
a stay Of judgment was granted and
The case appealed TO the supreme court
where u was argued by Attorney
General Breeder and District Attorney
/ "a Ia.