Oregon’s first murder defendant saved by his wife

By Finn J.D. John
October 27, 2019

IT'S HARD TO TELL, just from reading between the lines of the court documents; but it’s probably a safe guess that Nimrod O’Kelley’s neighbors did not like him.

It was the spring of 1852, and the Oregon Trail emigrations had just gotten started a few years earlier. O’Kelley had been one of the very first; he’d come out on the Overland Trail in 1845, then traveled south in the Willamette Valley until he came across a nice 640-acre parcel that he could claim under the applicable laws — 320 acres for himself, and 320 acres for his wife.

Trouble was, he had come out by himself, and he hadn’t anticipated the opportunity. His attempts to send a letter back East to his wife asking her to come out and join him did not meet with success until several years later, and when she finally did get it, she couldn’t just drop everything and hop on the next wagon train.

So as the years rolled by, other settlers came and set up claims nearby, and several of them were very skeptical about his marital status.

This was a thing that single men did somewhat regularly in those days — claimed a double portion, and then went looking for a woman, any woman really, that they could marry in order to keep it — before a neighbor got wise and filed a competing claim. O’Kelley, though, wasn’t looking for a wife; he claimed he already had one.

One of O’Kelley’s neighbors, Jeremiah Mahoney, was confident enough that O’Kelly was cheating the system that he filed a competing claim on Mrs. O’Kelley’s 320 acres, and started living on and working the land in the manner prescribed by the Donation Land Act.

Of course, this didn’t exactly win him a prominent place on O’Kelley’s Christmas card list. Hostility between the two Irishmen grew very quickly. O’Kelley was of Irish Protestant stock originally, but had at some point converted to Catholicism; it's a distinct possibility, given later developments, that Mahoney was a Protestant — either Church of England or a converted Methodist. If so, that would mean they would have had a baked-in reason to hate each other even without the land fight.

The situation continued for several months, with O’Kelley and Mahoney exchanging git-off-my-lands in lieu of hellos every time they met. Which of the two was the more aggressive in pursuing his claim, we don’t know; but we do know that O’Kelley took to carrying his shotgun everywhere he went.

Finally, on May 21, 1852, the feud escalated to physical violence, and O’Kelley shot Mahoney dead.

That evening, Mahoney’s wife, worried because he hadn’t yet come home, went to some of her neighbors and asked them to help search for him. O’Kelley, of course, was the primary suspect. But the neighbors couldn’t find him; he was on his way to Marysville (today’s Corvallis) to turn himself in and make a statement about what had happened.

According to the statement, Mahoney had belligerently approached O’Kelley, demanded to know why he always carried a gun, announced his plan to take the gun away and beat him over the head with it, and then made a grab for it. O’Kelley claimed he didn’t even remember cocking the gun and never actually meant to shoot; but the thing went off in his hands as the two men struggled over it.

But, of course, O’Kelley could say anything he wanted at that point, right?

A WARRANT FOR MURDER was issued that very day, and a special court session convened about a month later — for the first murder trial ever held in the Oregon Territory.

The prosecution alleged that Nimrod O’Kelley was a land pirate who had fraudulently claimed extra land, and that he had murdered Jeremiah Mahoney to prevent losing it, and to intimidate his other neighbors so that none would challenge him.

There was no hard evidence one way or the other, but the jury unanimously found him guilty and sentenced him to be hanged.

The hanging was scheduled four weeks after the trial, so O’Kelley’s attorney raced to appeal to the state Supreme Court. He cited nine critical errors in the prosecution. Most of these were procedural — inadequate notice, the wrong verbiage used in the charge documents — but several of them were whoppers. For instance, the county commissioners didn’t select the jurors as they were supposed to do — which suggests the jury may have been empaneled informally and deliberately packed with hostile neighbors. Hostile neighbors would have been easy to come by, as O’Kelley was Catholic and most of the immediate area was settled by hardcore anti-Catholic Protestants.

Plus, the entire community seems to have been already convinced of his guilt. Mahoney was an Irishman, but he was apparently very popular in the Marysville area (hence the speculation that he was an Irish Protestant); O’Kelley had to be sent to a neighboring county to await trial, for fear of a lynch mob being formed and storming the Benton County Jail.

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Also, the court did not require the grand jurors to be sworn, nor did it examine them as to qualifications — again, raising the specter of jury-picking.

Finally, the verdict wasn’t rendered in open court, nor in the presence of the defendant. Apparently the jury just sent word to the judge that the guy was guilty, and went home.

So the case went to the Supreme Court on appeal — and the Supremes handed down an absolutely astonishing verdict on the case:

They acknowledged the errors, but affirmed the verdict anyway. They explained that, given that O’Kelley was obviously guilty, because his was the territory’s first murder case, letting him off on even a very serious technicality would be poisoning the well of justice at its very source.

“Time was when the unfortunate accused was dragged to trial without counsel, or a fair chance for self-defense,” Chief Justice George H. Williams wrote, by way of explanation. “Then other rules prevailed, and courts tried to make technicalities the means of justice; but, when a prisoner comes before our courts with more privileges and presumptions in his favor than he otherwise could have, these olden rules cease with the reasons on which they rested, and criminals cannot be allowed to take refuge from the judgments of our liberal laws in the cobwebs of an antiquated practice.”

Perhaps hoping the territorial governor would take the hint and remove this somewhat thorny problem from his plate, Williams added that executive clemency was the only appropriate way to address procedural errors in a case where a defendant’s guilt was stark and obvious, adding, “If judicial compassion now bends the laws to suit a seemingly hard case, a door may be opened through which the midnight assassin and mercenary murderer may escape from the punishment due to their crimes.”

BY THE TIME the Supreme Court had gotten around to hearing the case, it was 1854 — two years after the murder conviction. During this time, passionate pleas had flown thick and fast from all over the state into the territorial governor’s office, arguing both for and against a pardon for O’Kelley.

And now we come to a point in this story where sources conflict.

In his 1935 article, McNary writes that the governor did not intervene, despite the pleas. So, the local court scheduled June 9, 1854, for the hanging. But the hanging never took place, because the cavalry came to the rescue — almost literally.

It seems that O’Kelley’s allegedly-imaginary wife, Sarah O’Kelley, left Missouri on the Oregon Trail in the spring of 1854 to join her husband, along with their several children. Word reached them en route that O’Kelley was about to be hanged for murder. So their oldest son took a horse and raced ahead of the wagon train.

He beat the clock, appearing at the Benton County sheriff’s office and introducing himself to Sheriff T.J. Right, and letting the lawman know the rest of the family was on the way.

This, of course, changed everything. O’Kelley went from a pirate trying to unlawfully seize another man’s land by force of arms, to a legitimate landowner defending himself and his property from — well, a pirate. It also was, in that age, far less of a big deal to hang a single man than it was to deprive an innocent wife and children of their family breadwinner.

Sheriff Right opened the cell door and set O’Kelley free — although he had no authority to do any such thing, he was confident that the law would catch up and everything would be all right.

This was certainly irregular, and that irregularity is something to consider, because historian Ronald Lansing (writing in 2005) gives a completely different account.

According to Lansing, the governor’s office actually intervened three times in the case, each time under a different governor: first to delay the hanging while the Supreme Court considered the appeal; again, after the Supreme Court’s sentence, in response to Justice George Williams’ hint, when he commuted the sentence to two years in prison; and a third time, in March 1856, when he was actually pardoned.

In any case, eventually the O’Kelleys did get their full section of land — but it didn’t happen until 1881. By the time it did, Nimrod O’Kelley had died of old age; but he probably would have been content to know his wife and children at least had a home.

(Sources: “Oregon’s First Reported Murder Case,” an article by Lawrence A. McNary published in the December 1935 issue of Oregon Historical Quarterly; “Nimrod O’Kelly,” an article by Ronald B. Lansing published in The Oregon Encyclopedia (oregonencyclopedia.org) on 19 Sep 2019)

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