Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-04-10
rection. I call your attention to the fact
that DR.. Flint, Dr. Mabon and their learned

rect1on. I call your attention to the fact
that DIR. Flint, DR.. Mabon and their learned
associates-not one Of them testified that
ct that time Harry X. Thaw was not labor
Ing under defect Of reason. Did they?
No. The learned district attorney was
very careful to ask them were they labor
ing under such and such a defect Of reason
the very question implying, II your honor
pleases, that they were laboring under a
defect of reahon, but not such as he chose
to describe.
As to DR.. Hamilton. there is no objection
to the argument that have made. I have
you have a right to infer, as intelligent
men, that the learned district attorney did
not redeem his promise to call DR.. Hamil-
ton to the stand as his witness. And the
because DR.. Hamilton would have testified
the reverse of what he would have you
believe-the district attorney would have
you believe he would call him to testify to.
Now, gentlemen, you have the testimony
Of the experts who have been called here.
You have the testimony of DR.. Flint You
have the testimony Of DR.. Mabon. You
have the testimony Of four other gentlemen
time Mr.. Thaw was not. in their opinion,
upon the hypothetical question stated to
them, laboring under such defect Of reason
as not to know, etc.
of your most attentive consideration that
upon the selfsame printed question upon
which they gave their testimony. the ques-
ton deliberately prepared by the learned
district attorney for their consideration,
seven men who may well challenge them
in point Of eminence, in point of learning
and in point of experience, seven men who
Standard l say it without disrespect to
the learned alienists the other side
seven men who stand at the very head OF
their profession alienists In the United
States, If not in the world-Dr. Evans OF
Morris Plain DR.. Wagner of Binghamton,
0r hi Of Va CHI ,cfn
Albany, the northern part of the state;
DR.. Hammond. DR.. Jeliffe, DR.. Gregory.
who examines practically all the people
that are sent to an insane asylum In this
state-these seven men concurrently tell
you that upon the selfsame question that
has been put to the six experts OF the
learned district attorney Harry X. IhaW
was beyond question, In their opinion, m
sane on the night of the 25th of June, did
not know that what he did was wrong, be-
lieved he was acting as the agent selected
by Providence to execute the act, DID not
understand the nature and quality Of his
act and is not resonsible under the law.
But, gentlemen, in addition to these
seven l wish you to add, and you should
add the testimony of the family physician,
whom the learned district attorney told
you he would place above all the alenists
In the land and would accept the opinion
of this honest doctor who had treated
Harry X. Thaw from his infancy. because
he knew by personal examination of him
in his office that he was man of charac-
ter, of probity and of learning, and his eX-
perience with Mr.. Thaw gave to his opin-
ion weight which amount of expert
study upon hypothetical questions could
impart.
And. in addition to these eight, you had
the silence Of Dr. Hamilton under the cir
cumstances which 1 have portrayed be-
fore you. So that we may say as against
the six alienists, four Of them-I say it
without disrespect-men Of little practical
experience, you have nine witnesses on the
side of the defendant who testified in his
favor upon this crucial and important
question.
Pays High Compliment to Judge.
Were the matter, gentlemen. then, one
in which mere civil issues were involved;
were 1t a question of mere dollars and
cents upon a commercial transaction: were
1t a question involving the ownership Of
some piece OF real property, the learned
judge upon the bench, who, permit me to
say has presided over our deliberations
with such uniform courtesy, kindness and
learning, would instruct you that you
must decide in accordance with the pre-
ponderance Of the testimony. And I ask
you. as reasonable men, as against the
testimony, If 1t was question OF expert
testimony, of the nine experts that We
produced why should your decision be
against the nine and in favor of six, many
of whom, in point Of experience, are GER
tainly, and in point Of rank and station
are certainly not to be compared with
these? You would decide then, in a mere
civil case, where the question was to be
decided by preponderance Of evidence
your decision would be on our side.
Were this case, however, not civil case
were 1T a criminal case involving the de-
priving Of human being of a few weeks
or months or years Of his liberty, and you
were told to decide between him and the
people upon a question of preponderance
of testimony by what rule would you de-
eide against the opinion Of nine learned
men in favor of the opinion Of six, GER
tainly no more learned?
A Question Of Life and Death.
And, gentlemen. If 1t were still ques-
ton of preponderance of evidence. and the
issue that you were to try was not the
temporary deprivation of a human being
of a few weeks or months Of his liberty
but If the issue was the great issue Of
life and death, and 1t were left to you as
reasonable men to decide that question
upon the preponderance of testimony, by
what rule Of logic, by what rule of
justice, by what rule Of humanity,
would you decide that you would de-
prive the man of his life upon the testi-
mony of six experts when nine experts,
four Of whom had had the inestimable adj
vantage Of personal examination, testified
in favor of his life?
But, gentlemen, 1 have far understated
humanity of that written law to which I
appeal for the protection of my client, the
humanity of the statute that 1s spread
upon the pages of the statute book Of the
state Of New York as interpreted from time
immemorial by the learning, the wisdom
and the humanity Of the judges of New
York. has declared that in a matter which
involves the state Of human being either
Of life or liberty, the rule which obtains in
civil cases as to preponderance Of evidence
finds no application.
Lays Emphasis on Reasonable Doubt.
Recall, gentlemen-bring your minds back
to the day when you were examined as to
your qualifications to sit as Jurors. Never
in my life, never in a long experience at
the bar Of over forty years, have I heard
the question to which I am about to ad-
dress my word placed upon a jury in a
manner SO clear, SO emphatic. as 1t was
placed by the words which fell from his
honor's lips when he said to you I'm a case
of this kind. gentlemen, are you prepared
to give the defendant the benefit Of all rea-
sonable doubts, for bear in mind"-the
learned judge added-"that in a case Of
this kind a reasonable doubt is thing that