The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-06-28
History of the Killing Of Foley
by Thos. C. Kirby.
AS TOLD In THE COURT
Of Accused Is Injured
by the Dead Man.
Refused to Marry Her and Is
Shot by the Parent.
Foley a Boarder at Hotel of
Kirby in Perry.


of Jefferson county succeeded after
about three weeks hard work and the
summoning of about 500 men in secur-
ing jury for the Kirby case which be-
gan Monday morning at 9 o'clock
The witnesses for the state were call
ed County Attorney Oscar Rains, Hor-
ace Shaffer, Horace Finney and J. II.
Atwood of Leavenworth were the at
torneys for the state, while Morse and
Casebier were for the defendant
The prisoner, Thos. c. Kirby, shows
the effects Of Is months confinement IN
the county Jail In April 1900, Thos. e.
Kirby was tried by the district court
of Jefferson county and sentenced to
Imprisonment. He served about 10 days
in the state penitentiary when the su-
preme court granted him new trial,
which trial began June "a.
Several witnesses were examined by
the state and all told a corrOborative
story as to seeing Foley come down
stairs with Kirby behind him with gun
in hand and had seen Kirby fire at Fo-
ley who fell in the street
The states side rested at noon We'd
nesday, June 26. Court had a recess un-
til o'clock when defendants witnesses
came in. They are Mr. Kirbys wife
and daughter Clara with others. The
daughter Clara, who is an important
character in the case is a young lady
of about is, she sat down beside her
mother and bowed her head and wept
for about five minutes, after which she
never looked up.
The first person on the stand for the
defense was the Defendant, Thos. c.
Kirby, and was on the stand all the af-
ternOOn and about an hour Thursday
morning. He testified to knowing Fo-
ley the deceased; that he Foley board
ed at Kirby's hotel at Perry, Kan, for
about eight months; that he came
there to board on the last day of May,
1899; that on the 14th day of Decerl-
Der, 1889, he learned that there was
something wrong with his daughter
Clara and afterwards learned that Fo-
ley, the deceased was the author of her
ruin; that he Immediately had a talk
with Mr. Foley and his wife in regard
to this; that he asked Foley to take the
girl to Oskaloosa and marry her. Mr..
Foley said he could not do it; that he
Kirby, asked Foley why, and Foley
said 1 am a married man; but Foley
said he had some medicine for her and
that In few days she would be all
right. That on that same day Kirby
took his daughter to Topeka for the
purpose of having an examination as
to her condition; that the examination
was made by DR.. Mum and he return
ed home the next day and on his ar
rival home his wife went to Topeka;
that nothing was said between him and
Foley about this matter after his ar
rival from Topeka, and that on the
Saturday following he went to Topeka
to see his daughter and returned to
Perry on the same day; that he and
Foley were on very friendly terms dur
ing this time but nothing concerning
the trouble between Foley and his
daughter, until on the morning of the
21st day of December, 1893
He testified that on the evening of
the 10th day Of December. 1899. he
borrowed a shotgun from Pat Maloy,
one OF his boarders and told him he was
going down the river the next day to
see Mr. Jones who owed him some
money and which he wanted to collect
and that he thought he might see some
ducks or geese on his way down: that
ne got the shells to fit the gun he had
borrowed; he put two of the shells in
the gun and put the gun in room g. the
next room to the one in which Foley
slept; that the next morning he went
to Foley's room to talk to him about
the trouble between Foley and Kirby's
daughter that Kirby said l want to
know what you are going to do about
this, and Foley said don't know as I
am going to do anything about it; that
Kirby said Mr.. Foley, 1 intend to prose
cute you to the extent of the law If
there is any possibility IsWill put YOU
behind the bars; that Foley sprang
toward him and said - you. will kill
you. At that Kirby drew his revolver
and pulled the trigger; that Foley grab
bed the revolver and pushed it down.
1t was discharged, the ball entering
Kirby's ankle; that he fired at Foley
and then ran into room where he had
put the gun the evening before, got it
from under the bed where he had
placed it. Just then Foley came to the
door and said, now - you, i have got
you. At which Kirby fired both barrels
at Foley; that Foley ran down stairs
and out into the street, Kirby following
him.
Foley fell on the sidewalk and Kirby
ran out and fired another shot at him
while he was lying on the sidewalk.
Kirby then turned and went back into
the hotel office and got through the din
ing room, through the kitchen through
the back yard, through the alley to the
livery stable where he got a horse and
rode to Oska1oosa and gave himself up
to the county sheriff
The cross-examination began Thurs
day morning and continued until the
noon recess. On the calling of the court
at 1870 the defendant was called on the
stand but had to be dismissed on &C
count of feeling sick.
A recess of one half hour was taken,
after which the defendant was able
to go on the stand and finish his testi-
mony-
The second witness on the stand was
Clara Belle Kirby, daughter of the de-
fendant and whom the defendant claim
ed had been betrayed by Foley. She
testified as to having improper rela-
tions with Foley, the deceased: that he
had given her medicine to produce a
certain effect, which medicine she took
and made her very sick; that on the
meantime her father took her to To-
peka where DR.. Mum made an examin-
alton as to her condition; that she re-
turned to Perry on December p, 1899,
the day Of the tragedy.
The cross examination was made by
Atwood. At a certain poin9 in the
dissemination the jury and wit
ness were excused while the attorney
argued a question Miss Kirby seemed
very sad and downcast but answered
every question without heSitancy.