The Indianapolis journal., 1884-10-29
THREE MORE DAYS TO LIVE.
TheSupreme Court Refuses New Trial
to Kprner, the Wife Murderer.
His Execution To Be on Friday Unless the
Governor InterfereS- Decision in Full
and How the Prisoner Received 1t.

wife murderer condemned to hang on next Fri
day, was affirmed by the Supreme Court yester
day. The opinion, which was written by Judge
collars, is quite lengthy, covering thirty five
pages of legalcap paper. The appeal to the Su-
preme Court was upon a motion for new trial,
and the contention of the counsel for the appel
lant is, that the sentence does not show Koerner
'to have been guilty and especially not guilty
of murder in the first degree, and that in the
trial the court erred in the instructions given,
and in refusing those asked by appellant The
objection urged is, that so many and varying
styles of expression are used defining premedi-
tated malice, as to render the instruction per
picking and misleading, and that the statement
that there need be no appPeciabe space of time
between the formation of the intention to kill
and the killing, that they may be in
Simultaneous as successive thoughts, when taken
in connection with the evidence was calculated
to create an impression upon the minds of the
jury that notwithstanding the short space of
time, if the killing was done by the appellant,
it might be murder IN the first degree. In the
opinion discussing the questions raised in the
appeal the court says: These objections, we
think, are not tenable There are no such vary
ing statements upon this subject of premedita
ton, as could misead any one. Indeed, the
court seems to have been especially careful to
impress upon the minds of the jury that in order
to sustain the charge of murder in the first de-
gree, it was necessary to show that there was
time for deliberaton, that there was such delib-
GRAFTON and fixed purpose to kill, preceding the
killing AS an abstract propo
sition of law we regard the
instruction as a correct enunciation, and we can
not say there was anything in the evidence
which might render this correct enunciation of
the law misleading to the jury or prejudicial to
the appellant
'In considering the objection urged against the
eighth instruction given by the court, it is proper
to state briefly some of the main facts of the
case, which are briefly these: For quite a while
preceding the homicide the appellant and his
wife had frequent disagreements and quarrels
On several occasions she had been seen fleeing
from him. He is known to have frequently
STRUCK her and threatened to kill her. In the
afternoon of the day before her death she
was found crying, and in the even
ing q short time before she retired
the appellant used violent and profane language
toward her The appellant was dairyman, and
was in the habit of rising early to milk his
cows. On the morning of Dec. %, 1888 at about
3 o'clock. he called the hired man. and the Two
went to the barn to do their work passing out of
the house from the room in which the hired
man slept After having been at their work at
the barn for an hour and a half the appellant
returned to the house. Sometime afterward, in
an excited manner, he called for the hired man.
and when he came to the house the appellant
took him to the bed, removed the covers from
the face of his wife. and said that some one had
shot and killed her, and that she was warm yet
She had not been shot. but had been killed by a
blow across the face and head with some hard
instrument. No such weapon was found in
the house, except an iron stove poker, which the
appellant frequently used during the morning in
poking the fire. From the corner of the house
there were tracks which led across the lot in a
somewhat circuitous course Witnesses testified
that the shoes of theappellant fitted these tracks
The theory of the State is that the appellant
killed his wife left pair of his pantaoons upon
the rain barrel, where they were afterward
found and made the tracks to turn suspicion
from himself. The appellants contention is
that these tracks were made bv some one who en-
tered the house for robbery and while there killed
his wife. 1t was upon this branch of the case
that the eighth instruction was gwen by the
court, and the objection urged against it Is that
the court had no right to assume that there
was evidence tending to show that there were
such tracks, and that, by the concluding words
the court in effect said to the jury that ii they
found that the appellant made these tracks that
was inculpatory evidence, to be considered
against him. There was no conflict in the evil
dence as to the eXIStance of the tracks. 1t is
the settled law the court holds, that where
there is any conflict in the evidence as to the eX-
istence of any fact in the case, the court cannot
in charging the jury, assume that such fact has
or has not been established Tested by the
decisions in cases which are cited, the
court holds that the objection urged to the in
struction, to the effect that it improperly as
sumes the existence of facts, is not well taken.
The important thing to appellant was not the
existence of the tracks. but whether or not he
made them That question was submitted to
the jury with the proper safeguards.
Three objections are urged to the ninth in
struction and these are that the first portion
does not go far enough-that the court should
have charged that the facts aud circumstances,
in order to justify u conviction. should not be
susceptible of any reasonable explanation con
sistent with the defendants innocence point to
the defendants guilt beyond a reasonable solu-
ton and satisfy the jury of his guilt beyond
reasonable doubt "All this, we think, is en-
braced in the instruction"
The second objection is that the instruction
directs that if all the facts and circumstances
could not be accounted for on the hypothesis of
the defendants innocence the jury should find
him not guilty. ave think that, taken as a
whole the instruction is not open to the objec
tions thus far noticed"
The third and last objection urged by the
counsel is that in the concluding portion of the
instruction reference is made to, and undue
prominence is given to, certain parts of the evil
] dence. 'The court did not assume the existence
of any facts" the decision says, "but explicitly
left it to the jury to determine from the evidence
as to whether or not they had been established,
which was certainly very favorable to the de-
fendant The only complaint that could, with
portion of the instruction, is that
made by the appellant, and that is
that the court should not. in any way, have
called attention to the facts and circumstances
relied on by the State. If this objection is well
taken then it will necessitate a ruling which
should not be made, that in no case can the trial
court call the attention of the jury to the facts
and circumstances in evidence, and instruct as
to the rule to be acted upon, by the jury, in de-
termining as to whether or not they have been
established by the evidence There is nothing
IN the instruction to indicate in the least that
the cDnrt was inclined against the defendant or