State v. Mortensen

• Decision Date: 19 November 1903
• Docket Number: 1516
• Citation: 74 P. 350,27 Utah 16
• Court: Utah Supreme Court
• Parties: THE STATE OF UTAH, Respondent, v. PETER MORTENSEN, Appellant

74 P. 350

27 Utah 16

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

No. 1516

Supreme Court of Utah

November 19, 1903

For former opinion, see 27 Utah 16, 74 P. 120.

Petition denied.

McCARTY J. BASKIN, C. J., and BARTCH, J., concur.

OPINION ON REHEARING.

McCARTY J.

On the 14th day of June, 1902, the defendant was convicted in the Third Judicial District Court of this State of the crime of murder in the first degree, and sentenced to be shot. He filed a motion for a new trial, and one of the grounds upon which he based his motion was the alleged misconduct of the jury while they were viewing the premises of the defendant, and other points, in the vicinity of where the evidence shows the crime was committed, and which points had been testified to in the case, and over which there was no contention or dispute. The record shows that, after all the evidence had been introduced, the court, on motion of the district attorney, made the following orders: "The court will appoint Mr. Royal B. Young as a person to accompany the jury and point out the location of the various objects that have been testified to. (Mr. Young was thereupon sworn.) Now, Mr. Young, you may take the jury, and it will be your duty to keep them together, and to take them to the premises in Forest Dale, and point out to them the residence of Peter Mortensen; the residence of the deceased, James R. Hay; the store which has been referred to as Hendry's store; the field in which the place referred to as the grave is located; the location of the various railroad tracks, including the street car track; and the premises surrounding these various objects." After the jury had been conducted to the scene of the homicide, and returned into court, the court stated to defendant's attorneys as follows: "The court has been informed that, upon the view of the premises by the jury last night, that some of the members of the jury stepped off some distances that have been testified to in the case. The distance between Mortensen's house and Hay's house, and possibly some other distances between points. . . . Mr. C. B. Stewart; We have no objection to offer at all. The Court: No objection to what has been done? Mr. C. B. Stewart: No objection to what has been done, so far as you have stated." The measurements referred to by the court were alleged in the motion for a new trial as part of the misconduct of the jury upon which the motion for a new trial was based. The motion was overruled, and the defendant prosecuted an appeal to this court.

One of the grounds relied upon by defendant for a reversal of the case was the alleged misconduct of the jury while making an examination of defendant's premises and other points near where the crime was committed, that had been referred to in the evidence, and another ground was the refusal of the trial court to compel Royal B. Young to testify orally respecting the conduct of himself and the jury while he had them in charge on that occasion. After a thorough examination of the record, and careful examination of the entire case, this court, in an elaborate opinion, written by Mr. Justice BARTCH, (26 Utah 312, 73 P. 562), in which the grounds for a new trial were all considered, affirmed the judgment of the trial court. Defendant filed a motion for a rehearing, and the same questions were again reviewed and considered and the petition denied. (26 Utah 354, 73 P. 633.) Thereupon defendant again filed a motion in the lower court for a new trial on the ground of newly discovered evidence, which he claims consisted of additional facts showing misconduct of the jury while they were inspecting the scene of the homicide, and again asked that Royal B. Young be sworn and compelled to testify respecting what he knew of the alleged misconduct of the jury, which the court refused to do, and overruled the motion for a new trial. From this order the defendant again appealed to this court.

The Attorney-General filed a motion to dismiss the appeal on the ground that the points raised were determined and disposed of on the former appeal. The majority of the court, in the opinion written by Mr. Justice BARTCH (27 Utah 16, 74 P 120), dismissed the appeal, as the questions involved had been considered and determined on the first appeal. By an examination of the record and the several opinions handed down in this case, it will be seen that the identical questions raised by this last appeal and the petition now before us for a rehearing, to-wit, the alleged misconduct of the jury, and the refusal of the trial court to permit Royal B. Young to testify in support of the motion for a new trial, having been twice considered and passed upon by this court, can not now be reopened for further consideration. That appeals cannot thus be multiplied, and the litigation of a case made interminable, is both...