The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-11-02


appeal was received and filed May II and
the case submitted On May IA Keith's
attorneys, Frank b. Posey and Dewitt O.
Chappell. OF Evansville, filed a motion for
"A stay Of execution based on the claim
that the summer adjournment of the Su-
preme Court would take place before the
case could be heard and decided. and that
their client would hang unless the motion
was granted. The Supreme Court on May
II granted stay of execution until Friday,
Nov. 10. 1901. and set the case Tor oral
argument oct. 2 On July the brief for
Keith was filed and OH oct. 2 the brief for
the State was filed by W l.. Taylor, attor-
ney general, Cassius G. Hadley and Merrill
Moores. deputies. and Thomas w Lindsey,
prosecuting attorney of Gibson county.
The brief for the State raised a point
that the evidence in the case was not
properly in the transcript, and on Oct.
ketths attorneys filed an application for
leave 10 amend the assignment of errors.
The following day they filed petition for
a writ OF certiOrari, directed to the clerk
of the Gibson Circuit Court. commanding
him TO forward to the Supreme Court two
bills OF exception that had been filed In the
case below. The opinion handed down yes
terday declares that Keith waited too long
10 file these motions.
SUPREME COURTS WORDS.
The Supreme Court says Of the objection
made by Keith's attorneys that the evil
dence did not sustain the verdict of guilty:
Much of the states evidence tending TO
establish the most discriminating circum-
stances was strongly cOntroverted. But
counsel are in error in assuming that. be-
cause this is capital case, court of re-
view will undertake TO weigh the evidence.
No more in this than in any other case
does the transcript bring uD the voice the
appearance, the demeanor of the witnesses, !
including appellant; and these are matters
that may have been controlling with the
jury and trial court in determining the
weight of the evidence and the credibility
of the witnesses. 1t was for the jury TO
decide what facts and circumstances were
proven beyond a reasonable doubt, and for
them, too, TO draw the differences deducible
therefrom, and if the inference of guilt was
fairly 10 be drawn from the circumstances
of which there was evidence. the appellate
tribunal should accept the finding OF the
jury, approved by the trial court, although
other differences might be drawn from The
circumstances in evidence. Our
judgment is that the verdict should not be
disturbed on account of the alleged insult
ticiency of the evidence to sustain it.
On the subject of Identification the Su-
preme Court speaking by Judge Baker,
talks interestingly follows:
Complaint is made of the courts ruling
in permitting the father of deceased and
other witnesses to testify that the body
found in Pigeon creek was that OF Nora
Kifer. Counsel contend that If a dead
body is mutilated decOmposed beyond
recognition. the law forbids the witness to
state whose body it is. and permits only
description of the similarities between the
dead body and the person in life. requiring
the jury to decide the question of identity.
Identity may be a matter OF opinion; If so,
then, too, is the question whether body is
recognizable or not. To certain schools of
metaphysicians the whole external uni
Verse may be an appearance merely-noth-
ing real, nothing fact. But the testimony
or witnesses that appellant did this or that
the law accepts as statements of fact, and
is compelled TO. else enter an ineXtricable
maze. Yet it may have been a case of mis-
taken identity Authorization.
who was IL that waited on the canal
bridge at dusk April )? The witnesses
were properly allowed to answer Nora
Kifer. Whose dead body found in
Pigeon creek? The hair and nails were
gone the skull fractured in many places.
the eyes were deeply sunken, the nose
decomposed, the skin somewhat discolOred.
But there the whole body, contour.
size. age, shape of head and face, tapering
fingers, double ankles, birth mark, a GER
tain front tooth decayed. beyond all, that
indefnable impression produced by the en-
semble. To those witnesses. parent. rela-
tive. neighbor, there was no inability To
recognize; on the contrary. they answered
and were properly permitted to answer
Nora Kifer's. The fun purposes of JUS
tice were subserved and all the elements
of the problem brought before the jury by
allowing in each instance, concerning the
dead body in Pigeon creek as well as the
live body on the canal bridge, the widest
cross-examination as to the reason why
the witnesses so answered There was no
error i'll the ruling"
\ CONTENTION ANSWERED.
The court answers the point of Keth's
attorneys that i'm the court below they
offered to prove that blows were struck
and cries of a woman were heard on the
night of May !, 1900. by calling attention TO
the fact that there was no evidence to
prove Nora Keifer was alive at that time.
The contention OF Keiths counsel that,
inasmuch as the law changing the name
of the State Prison South to Indiana Re
fOrmatory did not provide that thereafter
all persons sentenced to death in the south
ern part of the State should be executed
a Michigan City, therefore Keith could
not be executed, is answered by the Su-
preme Court opinion by a clear show
ing that. even if there no statute
prescribing how death penalties arc to be
executed and where, the common law would
still furnish ample remedy.
The closing portion of the courts opinion
is of especial interest in view of the be-
lief about the Capitol building that it fur
nishes Keith a possible ground of appeal
10 the Governor. The opinion says:
"Since the oral argument and after the
cause had been taken under Amusement
appellants counsel, probably having per-
ceived that their attacks upon the law of
1901 and the part of the judgment which
directs when. where. how and by whom
the penalty shall be inflicted had not been
duly presented 10 the trial court or here
have asked leave TO file additional assign
ments of error with a view to having
basis for their attacks. At least two rea-
sons forbid the granting of the request
The application comes too late And there
is nothing i'm the record on which TO found
the proposed assignments. The part OF
the Judgment which sentences appellant TO
death is affirmatively approved. Appellant
therefore cannot successfully assaH the
judgment as an entirety. Having failed to
move for a modification of the Judgment
with regard TO the details of executing
the sentence. appellant is unable TO point
out any ruling of the trial court on that
subject for review
The opinion closes i'm an impressive man.
ner as follows:
Appellant procured a change of venue
from the Warrck to the Gibson Circuit
Court The unusually Vouminous record
diSCloses that the trial conducted with
great care, zeal and ability by the re-
cpective counsel. A conservative and pains
taking Judge who saw the witnesses face
to face. pronounced the sentence and no
valid reason has been advanced why il
should not stand. Judgment affirmed"
Immediately after the decision was deliv-
cred TO the clerk Of the court preparations
were begun for notifying the warden of the
State Prison and the clerk Of the Circuit
Court of Gibson county Of its import For
NAL notice of the affirma ton of Keith'S
sentence will be received at Michigan CITY
this morning by the new warden. James
ID. Reid, and preparations will shortly be-
gin to carry out the mandate of the law
In connection with the decision of the
noted case it was recalled at the Statehouse
that when eX-Warden Shideler was in the
building several weeks ago he expressed
himself as greatly pleased that if Keith
should be doomed to die he CMr. Shidelcr)
would not be compelled To be the execu-
toner.