State v. Mortensen

¶1This case was before us on a former occasion on appeal from the judgment after a motion for a new trial had been overruled. We then, upon very careful examination of the whole record, and upon *18such, discussion of the various questions of law presented and involved as we then deemed necessary and important, affirmed the judgment, and remanded the case to the trial court for further proceedings according to law. 26 Utah 312, 73 Pac. 562. Soon after the remittitur was sent down, the defendant filed another motion for a new trial. Upon the hearing the court overruled the motion, and, this being a case of murder in the first degree, sentenced the defendant to be executed on November 20, 1903. Thereupon he again appealed to this court from the judgment, assigning as error the action of the court in overruling his second motion for a new trial. The trial court, upon application therefor, refused to grant the defendant a certificate of probable cause,, and that matter is also before us.

¶2The State has challenged the standing of the appellant in this court by a motion to dismiss the appeal upon the grounds, as stated in the motion, “that this court has passed upon every question presented in this appeal on a former hearing of this cause; and that there is no new matter presented on the second motion for a new trial, from the overruling of which this appeal is taken.”- After careful examination of the affidavits and matter presented in support of the motion for a new trial, which motion forms the basis for this appeal, we are of the opinion that the motion to dismiss is well founded. The questions presented on this appeal relate to the alleged misconduct of the jury while viewing the premises where the homicide was committed, and to the refusal of the court to require the officer who had charge of the jury at the view, upon his refusal to make affidavit, at the request of the defense, to give oral testimony concerning the alleged misconduct of the jury, which testimony was to be used in support of the motion for a new trial, instead of an affidavit. These same questions were presented on the former appeal, were considered by us with much care, and decided adversely to the defendant, although without extended separate discussion of the particular points.

¶3*201*19Counsel for the defense, however, insist that the affidavits in support of the motion for a new trial now disclose material facts prejudicial to the rights of the defendant, which were not presented to the court in support of the former motion. We perceive nothing in the present affidavits to warrant this contention. It is true the former affidavits did not present so much in detail the alleged misconduct as do those now presented, but at the hearing of the former motion, in addition to the affidavits then presented, counsel for the defendant made to the court an offer of what he proposed to prove by the oral testimony of the officer who refused to make an affidavit. That offer, as contained in the record of the former appeal, covered about two pages, of typewritten matter, showing very fully what the alleged misconduct of the jury, and officer was; and the same was considered by the court in connection with the affidavits, as shown by the record of proceedings,, appearing in the former abstract, which record, so far as material here, reads: “The Court: The court does not understand the offer. At this time you are asking to have that statement become a part of your affidavit, and sworn to as being true by you. Mr. B. J. Stewart: I wish to have the statement which I have made with reference to the testimony that I desire to put in, the proof and the facts that have been set forth as. being able to prove by Royal B. Young-- I say I wish to have that statement considered in connection with the affidavit which was heretofore filed. Like the record to so show; that I desire to have that incorporated. The Court: The court will consider it in connection with your affidavit. Mr. B. J. Stewart: So that it may become part of the record? The Court: It is part of the record, certainly.” Upon examination and comparison, it will be seen that the proposed testimony thus presented in an offer and received to be considered by the court in connection with the matter contained in the affidavits is substantially the same as the matter contained in the present affidavits, in so far as the alleged mater*20ial facts are concerned. Tlie affidavits now relied upon simply present tlie conduct of tlie jury while viewing the premises more in detail, and show more minutely of what the alleged misconduct consists. This seems to he admitted by counsel for the defense in their brief filed on this appeal, when, after stating what they claim to he the substance of the affidavits filed in support of the former motion for a new trial, they say, “The present affidavits 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 opinion as to the defendant’s guilt. Prom a perusal of this record the conclusion is irresistible that no right to a second appeal has been shown. The same questions now presented having been before this court on the former appeal, and having been considered and decided on that occasion under facts of the same character, they must now be regarded as res judicata. This appeal is, in effect, an appeal from our own judgment, and must fail. It can not be maintained. Kruntz v. Rio Grande West. Ry. Co., 13 Utah 1; Abbeville Electric L. & P. Co. v. West El. S. Co., 44 S. E. 952.

¶4The case of State v. Morgan, 23 Utah 212, 64 Pac. 356, relied upon by the defense, is not in point. It can readily be distinguished. There the affidavits filed in support of the second motion for a new trial showed that two of the jurors who convicted the accused had, previous to the trial, formed and expressed unqualified opinions adverse to the defendant, 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 examined upon their voir dire they answered that they had neither formed nor expressed an opinion as to the guilt of the defendant. Nor were the matters set out in the affidavits 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, *21the contents of the affidavits were not known to either the defendant or his attorneys until after the judgment had been affirmed by this court. As has been shown, here it is otherwise. It is plain to be seen that if such an appeal as is here attempted could be maintained, it would be difficult, if not impossible, to fix any stability to a verdict. Suppose we were to hold this appeal well taken, and were again to affirm the former judgment, could not counsel again, as in this instance, appear in the lower court, interpose a third motion for a new trial upon some of the same grounds that were containéd in the former motions, and support the motion by another set of affidavits which would show still more fully the matters previously ruled upon, and, upon the motion being overruled, again appeal to this court, and thus repeat the process ad infinitum, prolong litigation, and defeat justice at their mere pleasure"! To state the proposition contended for in this case is sufficient to condemn and reject it.

¶5We are of the opinion that this appeal should be dismissed, our former judgment remain undisturbed, and the application for a certificate of probable cause denied. It is so ordered.