Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1900-11-16


Gent Evidence
History Of the Alleged Crime and
Bsrtooh's Trial-Other Iowa
News
Special to Times-Republican.
Clinton, Nov. 16.-Theodore BeTtoch,
who was found guilty Of the murder OF
Charles selhusen by the district court
in this county at the November term,
1897, and was sentenced to the peniten-
tiary for life, is now a free mar and is
receiving the congratulations OF ms
friends in this city. He was convicted
Iof murder in the second degree, but the
decision Of the district court was re-
versed by the supreme court last month.
Sheriff J.E. Moran went to Anamosa
and yesterday arrived here with Ber-
toch. He was realeased on an ORDER
from Judge Wolfe, based on an order
from the supreme court of the state and
certified down to the district court.
The history of the case is as follows:
Mrs. Charles Selhusen and Theodore
lBertoch were charged with having muir
ldered Charles Selhusen by placing rat
poison in a jar of jelly eaten by Sell
lhusen. They had separate trials and
both were convicted and al was given
a life sentence in the p~enitentiary.
Frank w. Ellis, attorney for Theodore
Bertoch, appealed the case to the gu
preme court, on the ground that the
court erred in the Instructions to the
Jury, and also for the reason that the
evidence was insufficient. By the de-
cision Of the supreme court, handed
down recently, Bertoch was given his
Liberty, as the supreme court holds that
the evidence was not sufficient to con-
vict.
The case was before the supreme
court on a rehearing. On the first hear
ling the supreme court held that the low
Ter court erred in in%structing the jury:
IF you do not find h defendant guilty
Of murder in the first degree you will
then proceed to determine whether he is
guilty of murder in the second degree"
for the reasons that h statutes provide
THAT a person must be found guilty OF
murder in the second degree; that either
such an n is guilty of the first degree
or he is not guilty Of murder"
Milton Remley, Charles A. Van Week
and C. II. George, attorneys for the
state, asked and We're granted a rehear-
ing on the question whether this error
of the lower court was ~prejudiced to de-
PENDANT, Justices Waterman and Laid
having d%issented to that conclusion, and
the supreme court handed down a divid-
II aJ. - - ~ - - ~ ~, ~ ~ ~ a tn - r,, tjar q ~
this point, as contended for by the
states attorneys. but reversing the
case on the grounds of insufficiency Of
evidence.
The murder Of Charles Selhusen oc-
Cured but three years ago, Sept. Il,
1897. Theodore Bertoch and Ernestine
Seihusen were Jointly indicted for the
crime. The former was convicted OF
murder in the second degree. On APP
peal, four justices reversed the decision,
because of error in certain inatruc-
ton; the other two dissented. "A re-
hearing was asked by the state. 1t twas
granted. The error complained of is now
agreed to, unanimously, but the court
evenly divided as to its prejudice against
the defendant. 1t was not cause for a
reversal therefor, but other errors We're
discovered which made the judgment re-
versible.
These related to the admission of evil
dence Of the method which the state
claimed was used in poisoning Selhusen
The state claimed that rat poison was
administered in a jelly given to Sell
husen when he was sick. The Identical
jar was produced and the arsenic in the
fruit and OF the sides of the jar wa.
analysed by Professor Macy, state
chemist. But, in the opinion of the gu.
, preme court, failed to connect Bertocl
or Selhusen with the jar or the jelly. II,
, did buy rough on rats, but 20 long be
J fore the killing that it could not hav,
! been for that purpose. According to tn,
supreme court, the state failed to shov
that Bertoch knew anything about tn,
jar, or that Selhussn ever ate anything
out Of it.
The court says there was no question
but that Selhusen died OF arsenic poi
son, the quantity of which found in hi
, body was not administered by an en-
! balmer's fluid pump. But it says also
There ie not sufficient evidence to war
: rant the finding that the defendant ha,
knowledge of or participated in a pur
pose to take the life Of the deceased b
administering poison to him. Our con
clusion is that the evidence fails to sus
tain the verdict. and therefore tn
Judgment Of the district court is re
r Yersed.'