The San Francisco call., 1898-01-07
So Say the Attorneys of Dick Ph elan, the Sierra
 County Murderer.
The Supreme Court Will Be Asked to Set Aside the
 Judgment.
A Much Talked of Case That Will Probably Be a Long
 One.

Another appeal from the judgment rendered in a recent murder trial Is being perfected and will soon be pre- sented to the Supreme Court.
 On October 19 Richard Phelan, the superintendent of the Gold Ridge Mine, a claim owned by the Marguer- ite Mining Company in Sierra County, shot and killed Daniel O'Connor, a miner and prospector of that section of the country.
 The shooting was the outcome of a similar affair of a year ago in which O'Connor's brother, James, was hit in the hip by a bullet fired at Phelan by man named Paul Muller. who was himself shot and instantly killed by Phelan. Phelan was acquitted of the murder of Muller, as 1t was shown at the trial that Muller and O'Connor had been sent up by some of the other stockholders in the concern to jump Phelan's portion of the claim and thereby freeze him out, Phelan'S affi- davit of assessment work being held back to afford an excuse for the ac- ton; also that when the fracaS Oc- cured Phelan acted entirely on the defensive, not shooting until Muller had shot at him and wounded O'Con- nor in his endeavor to kill.
 After recovering from his wound OConnor left that part of the coun- try, but his brother, Dan, remained, | continuing in the employ of Phelan, though he made, almost daily, threats against the life of his boss because of the injuries suffered by his brother James.
 Finally Dan O'Connor became so troublesome that Phelan was obliged l.g tice of his discharge he went to work on a claim of his own, situated some l four miles from Phelan's mine. He | and his partner were entirely without | funds, and had it not been for the fact that Phelan continually sent them supplies and provisions, agreeing to wait for his money until such time as they could pay it. they would have | been forced to abandon their enter prise. Notwithstanding these acts of friendship on Phelan's part, O'Connor | continued his threatening language. O'Connor was addicted to the use of | intoxicantS, and when in town usually | got drunk. On the day of the killing | Phelan and O'Connor met in Sierra | City, and after some short conversa- 1 tion separated, Phelan returning to | his mine. which is located some two miles out of the city. While working | on the trail leading to that place he encountered O'Connor, who was re- l turning from the town. Without a word of warning O'Connor opened fire on Phelan, discharging his revol- yer twice, but failing to hit his in- tended victim. Before he could shoot a third time Phelan returned the fire | with a rife, shooting once, the bullet striking O'Connor on the side of the neck and killing him instantly. Phe- lan's rifle was one which belonged in his camp, but which he had taken from there in order to prevent it from getting into the hands of an intoxi- cated employe.
 Messrs. Edward J. Banning and l Barclay Henley, who are associated with Hon. F. D. Seward as attorneys for the defendant, claim that the yer dict of murder in the second degree
 brought in by the jury which tried the | defendant at Downieville, was not a just one nor one in accordance with the testimony; as the very worst which could possibly be expected from the evidence, granting that the theory of the prosecution was correct, would
 be a verdict of manslaughter. They further claim the community was SC l antagonized by the misrepresentations of the two newspapers there-the Mes senger, in which Fred Wehe, the Dis
 trict Attorney, Is financially inter
 ested. and the Enterprise, whose edi- tor, John B. Irish, was associated with
 Wehe in the prosecution, that it was | impossible for their client to obtain an impartial trial.
 Phelan was sentenced to serve twenty-five years in Folsom.