Show L REFUSED NEW TfflL Supreme Court Rejects Mor tensens Petition j ijj j ii LOWER COURT IS UPHELD r No Error Found to Justify a I T Rehearing Holds to the Position That the Prisoner 1 I oner Has Hntl a Pair Trlnl Before 11 1 Be-fore a Competent Jury IHi 1 For the fouth time the Supreme ourt yesterday blocked Peter Morten i r J sens attempt to escape the penalty of the law by rejecting his petition for anew j 1 a-new trial The decision of the court i written by Justice McCartney is as follows fol-lows 114 On the lltli day of June 1902 The lc Iemlant was convicted In tin Third Judicial Ju-dicial District court of this State of murder I mur-der Jn the first L decree ind sentenced to ly shot lie illcd a motion for a new trial I and ono of the grounds upon which he a f t based his motion was the alleged misconduct 1 miscon-duct of the jury while they were viewing I the premises of the defendant and other points in the vicinity of where the evidence ij i evi-dence shows the crime was committed 1 awl which points had been tcstilled to In f I j the case and over which there was no contention or dispute p s j The record shows that after all the j I I vldence hail boon Introduced the court rt un motion of the I District Attorney made J I the following order The court will appoint ap-point Mr Royal J3 Young as a person to I I accompany the t jury and point oat the location of the various objects that have boon testified to Mr Young was thereupon f I there-upon sworn Now Mr Young you mny take ihe jury and It will be your duty I I to keep them together and to lake ilium t I t to the premises in Forest Dale and point I out to them Ihe residence of Pel or Mor I I I U 1 loosen the residence of the deceased I 1 James II Jlay 1 the store which hau been referred to as llcndry5 store the Held I In which the place referred lo as the fj grave Is located the location of he various vari-ous railroad tracks Including the street far track and he premises surrounding I i these various objects After the jury had been conducted to the scene of the homicide and returned Into court the court stated to defendants defend-ants 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 I stepped off some distances that haw been testified to in this case The distance between be-tween Morteasons house and Jllays i i j house and possibly some other distances i between points I Mr C 13 Stewart We have no objection 11 11 jection to ofier at all The Court No objection to what has J boon done so far as you have stated Stewart No objection to what has 1 been done so far as you have stated The mcasurcmcnts referred to by the I court was alleged In lie motion for anew a-new trial as part of the misconduct of the jury upon which ihe motion for II new trial wits based The motion was overt over-t ruled and the defendant prosecuted an appial to this court One of the grounds relied upon > by the defendant for a reversal of the case was the alleged misconduct of the jury while making Clan examination of th defendants I defend-ants premises and other points near whore the crime was committed that had I beon referred to In the evidence and another an-other ground wns the refusal of the trial court to comptI Royal 13 Young to testify tes-tify orally respecting the conduct of himself him-self and the Jury while he had them In charge on this occasion After a thorough examination of tho record and careful examination of the entire en-tire case this court III an elaborate opin ion written by Mr Bartch 71 1 Pac 5R2 In which the grounds for a new trial were all considered affirmed the judgment of the trial 1 court Defendant filed a motion for a rehear ing imd the same questions were again reviewed and considered and the petition denied Thereupon defendant again nied a motion In the lower court for a new trial on the ground of newly discovered I evidence which he claims consisted of I Jdditlonal facts showing misconduct of the Jury while they were Inspecting the stone of the t homicide and iiguln asked that Royal V Young bo sworn and corn polled to testify respecting what he knew of the alleged misconduct of the Jury which the court refused to do and overruled over-ruled the motion for a new trial From this order the defendant again appealed to this court The > AttorneyGeneral I tiled a motion to dlsmss the appeal 1 I on the ground that i Ju points raised were determined and dlspobcd of on the former appeal The majority of the court In the opinion wrlt tfn by Mr Justice Bartch 71 l Pur dismissed the appeal the the questions Involved had been considered and deter mined on the first appeal By an examination of the record and the 5eeral 1 opinions handed down In this caye It will bo men that the Identical lucbllons ratted hy this last appeal and the petition noW before us for a rehear ing to wit the alleged misconduct of the Jury and the refusal of the trial court to Jlllmll ltoti D Young to testify Chncllul port of the motion for a new trial has I1g bern twice considered and passed tuba by thlH V court cannot now be rc pencil for lmlllcr consideration That appeals cruUlOt thus IJI m Si111 multiplied and > the litigation of n ease made idetermlna jlble Is both sound In principle and ported 1J l authority sup 0 YlnlJom ss Shwnrt Ii t S E flop rro zi Cromwell vs County of Sac II U S ziI 1 Herman on Estoppel siicW1 and Rcs Judlca tiu 515 anti casee cited t nd even If it wore conceded for the J purjrosos of this rSc that the lust 1 ion filed hy dltlmtlalll 1110 for L a uiev trial was basej nlmH newly 11IHcocI1HI evidence whIch ruujed IL i I1Ircllt flUCMliulI thiO5 diicpouaJ of Iom fl1 he l olJJlIlI ipcu the pollH Involved < are not based tier lQ they rtivl to any net over whIch Upon tticn was any controversy but on the rntrnlY they < refer to matters only over which there Is no dispute The theory ulunced by counsel for defendant Is tat riil tIIIIJanL kept the money whirl It 1r i3 cia iflii lh yj1 It I P cnni jumcH R > ii iiia iiorteiiHerrs rillnr wall and lint I on the IJIht of the homklde ho paid S al r ° loy l ° IIuy while sitting with him 111 a Settee In t loom ° f hula 1 > MortcnsonH VHK Ihe fact that the officer conduct rtl the jury to tms cellar arid pointed l out 10 them the wall on which It wan claimed hf decndulJl thai hi httit the mooney was not In any scriKo giving icstlmonynor 1JI101 i i such pointing out of the wall poHSl 4 f hi hILc 11rujudlce the jury lhe settee j 1rerrcll to wiia brought Into court dicing Li till progress ° f hue tl111 introduced hi Xl C1cic 1111 viewed 1 by the Jury It wan not claimed during the trial nor Is It con I I fcndcd I here that the Hittee was not the in on which Puler Morienscn claimed to liitVt Counted out and paid the jmve money to J It I Is also an admitted fuel that Ilav wni hl111 < by some one and burled in h IL Klinllow L siac In 1 a Held near defendants home UJ2x I clnluwrl that the officer while cl1lhlltlllh thin jury over the pr inh < ei 1I11011ud made any remark or suggested lUIthhlt respecting I the guilt or hnuiccmo DC the defendant or tho nnrlts of the cane Counsel for LIllI defendant In tholr pell l Moil for I a rehearing say The defendant t cia himself in n hotter position at thiN Imp on the pcllton for a rehearing to 1 present effectively tQ this court the fucta upon which ho relics for a reversal than I heretofore for the reauou that the members mem-bers of this court are In a position to at hrst form some Idea other than from the affidavits as to the truth of the facts and statements set forth In the affidavits filed 1 In supporf of the second motion for n new trial on account of them having sat as members of the noanl of Pardons during the examination of Royal u Young be lor that honorable body The facts set forth In the affidavits in support of tho motion for a new rial I ueie In substance the same as those presented pre-sented before tIne Board of Pardons and therefore would show more fully the good faith of the defendant In presenting the sicorul appeal supported by affidavits uhlch affidavits wu believe stand uncon iradlcted t not only Insofar as the record in this ease Is concerned but In view of the hearing before the Board of Pardons AVe tikc It that with the knowledge which the count now has there can be no doubt but what the officer Royal B Young who conducted ihe jury lo the view of the premises wap guilty of misconduct Since counsel place so much importance In support of tholr contention upon the testimony given by Royal B Young before be-fore the Board of Pardons which Is entirely en-tirely outside of the record In this case we herewith give the substance of an of lldavlt of Royal B Young filed by tho AttorneyGeneral in tit case the contents con-tents ot which are In harmony with thc evidence given by I him Young before lie Board of Pardons The affidavit so far as material Is as follows That while having chnrgi of thc Jury In viewing till premises I did not volunteer volun-teer any statement no to the commission of the crime with which the defendant Peter MorlmsPn was charged as alleged in the affidavit of Alma II Rock except while taking the Jury on th railroad track towards thc grave whore the deceased de-ceased James R Hay had been burled I aid llfivs where we first found tho blood spois on the rail the language being the I name as I used In piving my testimony testi-mony iu the aforesaid ease When we eamo to the grave and the Jury hurl viewed the grave where JaimK R Hay had been burled T repeated thc words to which I had testified In said case which Peter Moilcnson the dcfondanl used when wo had uncovered the I body In said grave to wit Oh or Poor Jlmmlo you have been roughly handled That I pointed out to the said jury such objects ami points nato na-to the best of my knowlcOgu and Information Informa-tion had been instilled to In the ease That I did not describe to tho jury while viewing said premises the conduct of myself my-self and the defendant on the morning of December IS 1501 when wo discovered the body of James R Hay I That I did not point out to I hc jury or say to the jury Here Is where Hays head lu supposed to have btruck where he fell right down isc re reTbat I did not carry on any conversa lI lou n with the said jurors as to the alleged homicide except by nnsweis 1 in response to questions by the Jury relative to th various objects and points of the premises where It was claimed the crime had he ell committed and as testified to III court In Biild case This IxjhiRacasc whpicln the lifo of a human being Is I at stake wo havo given tlu enllro casc thc moat thorough Invcs Ligutlon anti canful 1 cOllsldCIaton Old fall 10 find anything III lie t nocorci 1 that woulll wlrrant uu In churn niging the con ciuaions alrenidy reached rind annllllnc rht pet ititun for L n lchcalhlb hi lhcIuCoro overruled and denied |