The Washington times., 1907-03-20

Olcott. Gruber q Bonynge. / made
the examination in this building-not in
the Tombs prisOn-on June q
Q.-Who was present.
A.-Drs. Flint. Mabon and Mcclure,
and Assistant District Attorney Gar
van.
O.-Was there any physical examina-
ton OF the defendant made at that
time?
Jerome objected on the ground that 1t
was direct and not rebuttal evidence
Justice Fitzgerald asked:
tion?''
TO establish the condition of the de-
fendant at the time OF the examination.
which was only two days after the
tragedy said Delmas.
Argument on Objection.
Jerome argued that DR.. Hamilton's
testimony was all along known to the
defense He said that the alienist had
been retained by Thaw's early counsel.
who had not seen fit to call the ply
sician.
THE evidence of this witness" said
Jerome. may be of a character that
may necessitate my recalling every one
OF my experts"
II desire 10 call the courts attention
10 the peculiar attitude of the district
attorney" said Mr. Delmas. AT first,
lie protests that all he wanted was the
truth. That the district attorney should
ting out such testimony as would lead
las 10 get TO the truth in this matter, l
cannot understand
No such thing" retOrted Jerome;
that is not my purpose. l withdraw
my objection
Justice Fitzgerald said: THE respon-
sibility for any concessions granted or
any agreements reached must rest upon
counsel in the case. Where 1 have any
discretion. l will exercise il. Where 1
have none. 1 will rule strictly according
10 the law. -
Addressing Jerome, Mr.. Delmas said:
You withdraw your objection and
now you object again. basing your OBJ
lection purely upon the law. The dis
trict attorney has subpOenaed this wit
ness
Jerome interrupted: Il subpoenaed
DR.. Hamilton for the benefit OF the de-
fense."
To Prove Thaw Insane.
Delmas continued:
I'VE purpose to prove by him that
when this crime was committed the de-
fendant was insane and could not know
the nature of the act or that # was
wrong I purpose TO prove that by DIR.
Hamilton. a witness which the learned
district attorney subpoenaed and whom
he has not seen lit TO call.
our lOuOE VIII recall lildL Nj.
Smith, who was accessible 10 the prose-
cution at any time, was not called by
.hem until We had rested, and then the
district attorney appealed 10 your hon
or'S discretion. urging Lhat mat Wit
ness testimony was most essential as
proving that the defendant was not in
sane at the time Of the killing of White.
and that that act was murder in the
first degree After an elaborate discus
sion of that matter the evidence WIS
zn0UlnE
th@t Harry K. Thaw was sane the night
of June =. 1906 when he shot Stanford
White, and that ne was guilty of muir
der in the first degree.
Now, as | stated yesterday, IL the
case OF the people was open in chief 10
admit the testimony of Jhe witness. IS
II not a matter Of right that, as YOU
have been permitted To bring your heavy
artillery to attack our ramparts, why
should not we be likewise allowed the
privilege OF attacking yOurs?'
Mr.. Delmas added that Jerome clearly
stated the purposes of Smiths 'esti-
mony and rD.errcd 70 the minutes OF
The trial.
Wants All Testimony.
Mr.. Jerome said: Il have no objection
70 DR. Hamilton's testifying If he is to
tell all Your honor recalls we'll the
challenge Of the learned counsel. made
early in the trial, that he woud OFFER no
objection TO the district attorney going
into the truth OF the testimony OF
Evelyn Nes6it Thaw. The doors / am
willing TO throw open to give the Jury
all he facts Of this case. I am willing
that DG. Allan Mclean Hamilton should
testify. but / want him 20 tell all he
knows. If he does that I will not OBJ
ject. II the case Is TO be reOpened. I
am perfectl~ willing 10 allow it to be
reOpened, T. the attorneys record Of the
defendant will stipulate that il is to be
reopened to the prosecution as well as
10 him. Unless this is stipulated I shall
not give my consent and l viii press
my objection" a"
Mr.. Delmas said: Il say that it is only
IN justice to this defendant that this
evidence be heard In regard to the re-
marks OF the learned district attorney
that / withdraw my consent to his in
curry into Mrs. Evelyn Nesbit Thavy's
story, your honor will recall that the
prosecutor himself said her story could
not be impeached. He said that the
law would not allow him TO ACCEPT that
WaiVer-that he was the sworn officer
or the state. and II is not without a vio-
laton OF his oath Of office To depart
from the enforcement OF The law.
Court Sustaihs Objection.
After all this" continued Mr.. Del
mas. then. for the first time. he I'm the
interests of justice announced that he
would avail himself of my offer. In the
1ace OF his early remarks and your hon
or's ruling, he could not avail himself Of
an offer without the law. N this case
j am making no stipulation, because IL
seems that to make them is n most
dangerout thing. An illustration was
onered yesterday, when the district at
torney most solemnly stipulated that
The letter then under discussion should
be regarded as having been written be-
tOre June p. 1906 This stipulation is
on the record. and yet he now saws he
has forgotten il. Therefore, let us make
no supulations; let US try this case on
the rules OF evidence, which the learned
district attorney is sworn 70 obey. even
thRm"
Justice Fitzgerald said: y will sus-
tain the objection AS a matter OF law.
1 must sustain #"
Il desire 10 state what my purpose
was IN examining this witness" said
Mr. Delmas
Mr. Jerome said: II have no obiec-
ton TO counsel doing so, only that 1
should wish the jury TO retire from the
room while he is doing So
Justice Fitzgerald said. 1T Is not
proper for counsel to state in the pres
ence of the jury facts which thew in
tend 70 prove K is an indirect way in
getting before the jury matter that NAV
be ruled out 1 viii withdraw the Jury
If you so desire
np1yuoo pIaa5, - ":