The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-03-12


Of imparting any information to the
learned district attorney
Justice Fitzgerald here interrupted to
say ne was ready to rule on the prin-
clpai issue. Mr.. Delmas then request
ed 10 minutes in which to confer with
associate counsel and the request was
granted and a recess was ordered.
Court Re-convenes.
After the recess Mr. Delmas stated
that subpoenes We're issued from the
first in October, then in November, and
finally on December 3. This fact, Mr..
Delmas declared, showed the district
attorney could have properly summoned
Mr.. smith and had him here when the
trial opened.
That statement is traversed abso-
lutely, broke in Mr.. Jerome.
Ihen on that point are we at is
sue, replied Delmas.
Mr.. Jerome cited a number of auth
critics to support his contention that
there would be no error in Justice FYtz-
gerald allowing the prosecution to give
evidence in aid of the case already
made, even though the defense had
rested. He spent nearly half an hour
on the citations and then resumed his
argument, eventually concluding with
the renWed request that as matter of
justice he be allowed to take the testi-
mony of Stanford Whites brother-in-
law.
He asserted that as a matter of re-
buttal If not direct evidence Mr.. Smith
should be allowed to testify, as the
state proposed to contradict the conten-
ton of the defense and show that Thaw
was of sound mind the night he killed
White.
I'VE will go further said Jerome,
and show the elements in this case
which go to make up murder in the
first degree as defined by the statutes"
Mr.. Jerome sat down and Mr.. Del
mas arose to reply once more but had
hardly started out upon his argument
when Mr.. jerome interrupted to say
that he did not know of the important
conversations Smith had with Thaw on
the Madison Square Garden until the
former returned from Europe last
month.
Jerome Wins His Point.
Mr., Deinas saidh was at loss to
ney which was of such continually
changing character. First he desired
Smith to testify in rebuttal, then as a
witness under the discretion of the
court and at LAST on the ground of
newly discovered evidence.
Mr.. -Delmas wanted to know why
Mr.. Jerome stated yesterday that he
had made such strenuous efforts to
ming of the trial, when at the time the
efforts were made the prosecutor did
not know the character of the evil
dence to be offered.
Jerome replied that he knew from
the first that Smith was on the roof
garden but when he first examined
the witness, nothing was developed as
to the conversation with Thaw
II was at dinner at Martins recent
ly." said Jerome, when a friend ask
ed my why I did not call Smith. He
told me of Smiths conversation with
Thaw and that was the first I heard
of it."
Then you would reopen the case
entirely replied Delmas, ito put in
newly discovered evidence. I must
protest against any such course
Delmas closed with a plea for the
court to exercise its discretion in ia
vor of the defendant. He charged
that Mr.. Jerome had deliberately and
Intentionally withheld his knowledge
as to the character of Smiths testi-
mony. --s.,--
Justice Fitzgerald was brief in his
ruling. He said the evidence Mr..
Smith had to offer was newly discov-
cred and in the interest of justice
should be given to the jury.
II overrule the objection" he con-
cIuded.
Mr.. Jerome asked then that the ex-
animation of Mr. Smith be postponed
until after the luncheon recess to en-
able him to call Police Officer Edward
F. Howe to the stand. This was
granted
Policeman Howe Called.
Howe said that on the night of
June 25, last he was walking down
Madison avenue when he met Police
man Wright with Harry Thaw in Gus
tody. He accompanied them to the
police station.
Jerome asked the witness what he
said to Sergeant Mccarthy at the sta
ton in the presence of the defendant.
Delmas objected and finally Jerome
withdrew the. question.
hid wi he Cai
Delmas, 1.-The district attorney admits
it was an unlawful Interrogation"
Under those circumstances, 1 re-
new the question:" retorted Jerome.
And I sustain 1.-The objection" in
terposed Justice Fitzgerald
did you say anything to the de-
PENDANT or did the defendant say any
thing to you?" asked the district at
torney.
yes. I said: so you did some shoot
ing?' when 1 found the pistol pouch in
his pocket" said the witness.
At Mr.. Delmas' request that part of
the answer relating to the finding of the
pouch was stricken out.
His answer was yes" went on the
then asked him Did you hit
the party you shot at?' and he answer
ed Yes, I think / did
WAS it a woman or a MANI" asked.
g Tt was a man. he answered.
In your opinion, was the defendant
of the witness.
Rational"
Delmas asked the witness only few
immaterial questions and the witness
was excused.
Jerome here called Cartel Flint, the
physician to whom Evelyn Nesbit is
said to have gone with Jack Barry
more, the actor.
When young Mrs. Thaw was on the
stand she was confronted by DR.. Flint
and declared she had never seen him
before.