The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-07-04
.PLEAFOR KELEHER
Hill City Man Before the Su-
preme Court.
Attorney Richie Contends Boy
Isn't Guilty of Murder.
DIDN'T INTEND TO KILL.
He Only Planned to Rob Young
Wetzel.
Case Won't Be Decided Until
After Vacation.

Charles Keleher, the alleged accom-
plice of Leland Roberts in the murder
of Charles WetzeI near Hin City,
Graham county, on November 15,
1905. made his fight Tuesday before
the supreme court for a new trial, and
there Is some chance that he may be
successful in his effort.
David Ritchie, of Salina, represent
ed Keleher in the oral argument be-
fore the court. and T. F. Carver, of
Topeka, employed by Graham county
to assist in the prosecution. represent
ed the state. The attorneys for both
sides fled elaborate briefs
Mr.. Ritchie built up his defense
largely around the theory that the dis
trict court erred in adopting the
theory that if Keleher had entered into
a conspiracy with Leland Roberts to
commit a felony. but which conspiracy
did not in any manner involve the kill
ing of Wetzsl, or the doing of any act
the probable consequence of which
would be WetzeTs death. that never
the1ess Keleher would be guilty in
case the killing as it occurred was the
natural and probable outcome Of the
execution of the plot
The defense has contended through
out that even admitting that plot ex-
listed by which Roberts and Keleher
were to get Wetzels money, that 1t
was the plan to take the money while
Wetzel was asleep. 1t holds that
when Roberts went ahead and killed
Wetzel by striking him on the head
with a singletree. he did something
which Keleher had not expected, and
which was entirely beyond the original
limits of the conspiracy Mr. Richie
said:
'.It seems clear to US that it was the
duty of the court to instruct the jury
that before it could convict Keleher II
must find and believe that the con-
spirators had agreed upon plan tne
probable consequences Of which Wouid
be the killing of Wetzel-"
It is also contended by the attorneys
for Keleher that Claude Robinson J.
r. Nicholson and L. n. Drieiing, three
81 the Jurors. had formed and ex-
pressed an opinion Of Keleher's ganl
before they sat upon the jury rms
was one of the matters presented to
the lower court in the application for
a new trial
1t was also urged, at the time the
new trial was asked for in the lower
court, that Leland Roberts had gone
before the court subsequent to MS tes-
timony and had declared that his tes-
tinonv in which he involved keleher
in the killing was absolutely false.
Mr.. Richie says OF tnlS-
"If you exclude from this record
all the testimony of Leland Roberts,
there can not be found between the
lids of this record the proof of single
fact or circumstance which in any
way tends to prove the guilt of Charles
Keleher."
The lower court overruled both of
these grounds for new trial. and said
of Roberts reputation of his former
testimony:
THE said motion for a new trial is
bv the court overruled. the court
holding that the evidence is INSULT
cient to prove that the defendant was
present at the time and place of the
killing of the deceased and partici-
pating in the killing, but holding that
it is sufficient to prove him guilty as
accessory before the fact and as
conspirator under the law"
In opposing Mr.. Ritchfe's conten-
ton that the jury had been wrong
fully instructed, Mr.. Carver said:
Counsel seems entirely to lose
sight of the principles familiar to the
common law, which makes one of sew
eraI persons criminally responsible for
the acts of others, even though he
did not directly participate or give his
consent to them. They seem to as
sumo that one who conspires to COM
nit a felony or other unlawful act. in
the perpetration of which human life
is taken, is not anSwerable for the
homicide unless the taking of human
life entered into the conspiracy and
was part of the purpose of the con-
spirators in accomplishing their other
unlawful purpose But that this is not
the law Is shown by even a cursory
exa rninatfon of the decisions. The
effects of conspiracy to do an un-
lawful act and the iar reach Of the
law IN such cases has held many a
man criminally responsible for the
murder of another, when the taking
of human life was far from his in
tent or purpose. These principles
were recognized by the learned trial
judge in this case, the only mistake |
he made in the instructions being to
give the law too favorable to the de- |
fendant"
The supreme court viii not decide
the Keleher case until after the sum- |
mer vacation.
SHIFTS ARE RFcIlN