The Birmingham age-herald., 1907-04-11
7HA " JUR9 FAILS TO REACH VERDICT BYuP. M. AND IS
 LOCKED UP 7ILLI0:30TODAY
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 -- -- -- ---..---s. not sufficient as an excuse. The settled law of the state is that so long as that power to appreciate the nature and quail ity of the act is present no man must commit crime if he would escape the con- sequences.
 of he cocks, aims and discharges a re- voyer, as 1t is alleged here did he know when he cooked and fired the weapon that the act was wrong and that 1t would probably destroy a life, and did he know that the act was forbidden by law? That IS the question which the law must have answered. Mental Effect. Under the rule of evidence the story claimed by the defendants wife to have been told by her to the defendant is ad- mtted not as affecting the character of the deceased, but that you might consider what erect such story had on the defend- ants mind. In considering her story the credibility as a witness Is highly material, and everything that she has said or done must be taken into consideration. Her admission regarding the relations exist ing between herself and the defendant prior and subsequent to this tragedy, and prior to her marriage, or any other act should be weighed in connection with her story.
 "A wide latitude was allowed on cross- examination. You should give due credit to all that was developed along with other facts. The letters, the will and the codicil which are before you were not admitted under any ruling as to their competency, but by consent of counsel. There has been no denial entered here that death resulted from pistol shot , wounds inflicted by the defendant. The legal presumption is that the de- fendant was sane when he committed the act. It was not incumbent upon the prose- cution to introduce preliminary testimony to show that he was sane. The burden of proof is upon the defense Whoever denies sanity must prove that insanity is present. The law assumes all men sane as it assumes all men Innocent. The burden proving a crime is In prosecu- tion, but the burden of overthrowing san ity Is on the person claiming 1t. The de- fendant is entitled to the benefit of the doubt in this case.
 Hypothetical Question. s"The hypothetical questions which were answered by the experts assumed certain facts, and the answers were the only opinion of the experts on those assumed facts. You are not obliged nor are you permitted to accept opinions as you would facts. In considering the testimony of medical experts you are to consider their experience and knowledge and you should consider the quality of the medical testi- mony and not it's quantity.
 The so-called irresistible impulses has no place in the law and is not an excuse. nor is every person of dsordered mind excused. While the burden of proof of in- sanity is on the defendant he Is also en- titled to every reasonable doubt on the subject. If the defendant knew the na- ture or the quality of his act, or knew that the act was wrong, then he com mitted a crime.
 AS to the distinction between reason able doubt and a possible doubt you were thoroughly examined when you were about to become jurors. The law does not require that the prosecution shall efface every possible doubt It only requires that the prosecution shall go beyond a reasonable doubt. Nothing in this world is beyond all doubt. The defendant is en- titled to every reasonable doubt, and that is all.
 "A reasonable doubt is such a doubt as might arise in the mind of any intelli- gent man who if called upon to give reason for such doubt would not be at a loss to do so A reasonable doubt is not an imaginary thing. It is such g. doubt as arises from the evidence If such a doubt as painstaiking man might
 
 weighing of the evidence To ali such doubts the defendant is entitled
 IT any of you have a reasonable doubt that this defendant is guilty of murder in the first degree, but have no doubt that he is guilty of murder in the sec- ond degree. you may find in the second degree. And so with manslaughter.
 Ground of AcquIttaI.
 You may in this case, let me say once more find the defendant guilty of mur- der in the first degree, guilty of murder in the second degree, or guilty of man. slaughter.
 ''If you vote for acquittal on the ground of insanity, you may state that ground in your verdict.
 You must be guided. gentlemen, en- tirely on the evidence. Clamor, preju- dice or sympathy must not prevail. You must be guided by your reason and your judgment.
 "The case has been fully tried, and I have not attempted to make any epitome of the evidence If in any allusion have made to the facts my statement does not agree with your recollection, you should take your own recollection.
 Tt is the duty of each juror to con- sider the evidence of all the important statements of counsel and all the sug- gestions of your fellow jurors.
 T nave endeaVOred to fa1thfully guard the rights of the defendant as well as the rights of the people in the many rul- ings I have made, and have tried with clearness and fairness to instruct you In the law.
 'The facts must be carefully weighed. Remember the paths you took to well and truly try this issue. Weigh the evi- dence carefully, consider 1t and discuss it, and return your verdict according to your oaths.'
 Supplements Charge.
 Justice Fitzgerald supplemented his charge again clearly defining the legal definition of reasonable doubt, and saying no man should vote for a verdict as long as a reasonable doubt existed In his mind. He did this by request of Mir. Jerome. The defense also requested special charge on several points, but Justice Fitzgerald said that he had practically dwelt on all of them with the exception of a few, upon which he declined to say anything. He granted the defense an ex- ception on his ruling.
 The jury then retired at 5:17 D. m.
 Jury RetIres.
 The atmosphere about Thaw and the members of his family was heavy with gloom during the judges charge The de- fendant sat In a dejected mood, his head bowed. his face pallid, and his entire ap- pearance denoting nervous state of mind. It seemed as though every vestige of hope had been taken away from him. All the confidence and cheerfulness which