State v. Mortensen

• Citation: 73 P. 562,26 Utah 312
• Decision Date: 12 August 1903
• Docket Number: 1457
• Court: Supreme Court of Utah
• Parties: THE STATE OF UTAH, Respondent, v. PETER MORTENSEN, Appellant

73 P. 562

26 Utah 312

THE STATE OF UTAH, Respondent, v. PETER MORTENSEN, Appellant

No. 1457

Supreme Court of Utah

August 12, 1903

Appeal from the Third District Court, Salt Lake County. -- Hon. C W. Morse, Judge.

The defendant was convicted of murder in the first degree and sentence of death having been pronounced against him, he appealed.

AFFIRMED.

Messrs Stewart & Stewart for appellant.

Hon. M A. Breeden, Attorney-General, Hon. W. R. White, Deputy Attorney-General, and Dennis C. Eichnor, District Attorney, for the State.

BARTCH J., delivered the opinion of the court. McCARTY, J. BASKIN, C. J., McCARTY, J., concurring.

OPINION

BARTCH, J.,

STATEMENT OF FACTS.

The information in this case charges the defendant with the unlawful, deliberate, and malicious murder, on the 16th day of December, 1901, of James R. Hay. Among other things, it appears from the evidence that the accused and the deceased were both residents of Forest Dale, Salt Lake county, Utah. The deceased was the secretary and treasurer of the Pacific Lumber Company, a concern dealing in lumber. The defendant was a contractor and builder, and before and at the time the crime charged was committed was indebted to the lumber company for lumber and building materials. Having been frequently asked by an agent of the lumber company for money in liquidation of the indebtedness, the defendant, on the 14th of December, 1901, appeared at the office of the company in Salt Lake City, and stated to its manager, Mr. Romney, that he thought he would be able to pay the account on the 16th of December, 1901. On the afternoon of the 16th, at about 6 o'clock, he again appeared at the same office, and stated, in the presence of the manager and the secretary, that he was ready to pay the indebtedness. They then checked over his account, and found that he owed the company $ 3,907. For $ 107 of this he had given the company an order on another person, and the balance, or $ 3,800, he said he had accumulated, and was keeping at his house at Forest Dale, and told Mr. Hay to make out a receipt and "fetch it along" with him. Mr. Hay made out a receipt as requested, and then pinned it and a note, which the defendant had given the company as evidence of part of the indebtedness, together, and put them in his inside coat pocket on left side for delivery by him to the defendant upon receiving payment of $ 3,800. The manager, being alarmed because of the defendant keeping so much money at his house, commanded him under no circumstances to pay over the money that night, not until the next morning, and instructed Mr. Hay not to call for or receive the same until in the morning. The defendant said he wanted to surprise them, and that was his reason for accumulating the money instead of paying the indebtedness in partial payments. The three then, it being nearly eight o'clock, left the office and went together up South Temple to West Temple street. Thence the manager continued on home, and Mr. Hay and the accused took the Calder's Park car for their homes at Forest Dale.

It appears from the testimony of the witness Morton, that after Mr. Romney, the manager, left them, the defendant arranged for Mr. Hay to come to his house and get the money that night. The deceased arrived at his home about 8:25 p. m took supper, and then left his house at 9:45, saying to his wife, "I am going over to Peter's [defendant] to collect some money. I will be back soon." At about 10:20 the wife and children retired. At 1 o'clock she awoke, and, finding her husband had not returned, became alarmed, and about three o'clock went to the house of the accused, aroused him, and inquired for her husband. She says he appeared very nervous and said her husband had "gone up to Ernest's" (meaning Mr. Romney), and told her that he supposed he missed the last car home and "stopped over with Ernest." The next morning, the 17th, about ten o'clock, the defendant called up Mr. Romney by telephone at the office of the lumber company, and wanted to know if he had seen Mr. Hay, and, upon receiving a reply in the negative, told him that Mr. Hay left his "place last night and had not been seen since." Upon being invited, the defendant then went to the company's office and told the witness Romney that Mr. Hay came to the defendant's house the night before for the money; that after trying to persuade him not to take it at night, without avail, he paid the money over to "Mr. Hay in twenty-dollar gold pieces;" that, after Mr. Hay had checked the amount and distributed it in his different pockets, he accompanied him to the door, opened it, and, upon Mr. Hay passing out, shut it; and that that was the last he had seen or heard of him. On further inquiry the accused stated to the witness Romney that "he had been accumulating the money for some time; that he had been getting all his checks cashed into twenty-dollar gold pieces; and that he had kept it loose in the cellar on a beam or cross-wall." Mr. Romney and the accused then informed Mr. James Sharp, the father-in-law of the deceased, about the latter's disappearance, and related to Mr. Sharp the defendant's story, and then informed the police department, and repeated the same conversation, respecting Mr. Hay's getting the money and leaving, to the chief of police. In the presence of the accused, the circumstances were also explained to others as he had related them, and it seems some began to surmise that Mr. Hay had departed with the money after giving the defendant the receipt and note. Later in the day Mr. Sharp, Mr. Romney, the defendant, and others, went to the defendant's house at Forest Dale, and there, in his presence, upon inquiry by Mr. Sharp about them, the defendant's wife produced the receipt and note which Mr. Hay had taken with him from the lumber company's office. Then, upon being asked by Mr. Sharp, in the presence of a detective and others, to explain his transaction with Mr. Hay the night before, the defendant said that he had kept the money on top of the east wall in his cellar; that part of it was loose, and part in a sack; that he brought it up out of the cellar, some in his pockets and some in a sack; that Mr. Hay and he then sat down on a small settee and counted the money; and that Mr. Hay took part of it in his pockets and part in a sack, in all 190 $ 20 gold pieces, and then left the house, went down off the steps toward the south gate, but that he did not see him go out of the gate. After having stated the details of the transaction, and after some persuasion by Mr. Sharp, who desired to know where the accused had last seen Mr. Hay, the defendant went to a spot, in a walk leading from the house, about 10 feet from the steps, and said there, as near as he could remember, was the last place he saw Mr. Hay. Mr. Sharp thereupon said to him, "If that is the last place you saw my living son, that is the place where he was killed." Thereupon an occurrence took place between James Sharp and the defendant, as shown by the testimony of the former, as follows: "I asked him to come again and show me where my son stood in the path, and he came with me and showed me again, and, when he put his foot there, I said, 'There is where you killed James R. Hay;' and he says, 'How do you know he is dead?' and I said, 'The proof to you will be that within twenty-four hours of the time we are speaking, and within a mile of the place where you put your foot, his dead body will be dug up in one of these fields.'" To this accusation the defendant made no denial. In the afternoon of the same day suspicion began to point to him that he had killed Mr. Hay to obtain possession of the receipt and note. The next morning, December 18, 1901, while one Frank Torgersen was out looking for horses, he noticed in a field, west of defendant's house, and a short distance north of the railroad track -- the Park City line, which at that place extends east and west -- a little mound, and several spots of blood between it and the fence along the railway. Seeing this, Torgersen went to defendant's house and asked him for a shovel. The defendant gave him a short-handle, round-pointed one, and told him that was the only shovel he had, although later a long-handle, square-pointed shovel, which had the appearance of having been cleaned, was found in his barn, and the imprints about the mound had the appearance of having been made with a square-pointed shovel. Torgersen, upon returning to the mound with the shovel, discovered that a body had been buried there, and upon making known his discovery a number of persons, among them the accused, went to the mound and exhumed the body of Mr. Hay. As the body was being taken out of the grave, a detective, standing by the side of the defendant, remarked that robbery was not the motive, as the gold watch was there, but received no reply from the accused. It was also noticed that the coat pocket on the left-hand side, into which Mr. Hay had put the receipt and note, on the evening of the 16th, at the lumber company's office, was pulled inside out. The body was then placed on a patrol wagon and taken in front of Hendry's store, where the wagon was stopped, and Mr. James Sharp and others appeared. While there, Mr. Sharp, who had on the day previous accused the prisoner of killing his son, in the presence of a number of people, looking at the defendant, who stood but a few feet from him, in front, and then at the dead, said: "He murdered you for a receipt that was on your body representing thirty-eight hundred dollars, and you never ran away, nor he never gave you a dollar." To this accusation the defendant made no reply, but dropped his head and looked on the ground. He was finally placed under arrest, and thereafter made various conflicting statements...