The daily morning journal and courier., 1907-04-05

NNOnLlOueQ ETQm ElrSL PdRG.J appellate division. Should he reach the conclusion, after examining the law on the subject, that Justice Fitzgerald had not committed legal error in refusing him access to the commissions min utes he would, of course, take no fur ther action. Mir Jerome declared that if he made an application to the higher court it would be because of the prece- dent set by Justice Fitzgerald, and not particularly because of the effect in this case.
 Thaw was not in court to hear the decision. The jury which has heard the testimony against him was also ex- cluded, and both prisoner and jurors were out of range of the district attor- neys heated discussion with Justice Fitzgerald All the members of the Thaw family including the mother and wife of the defendant, were present, however and their keen delight over the announcement of the favorable re- port from the lunacy commission was turned into alarm at the unexpected attitude of the district attorney whose threat to take the matter before the appellae division of the court seemed to involve another serious delay in the long-drawnout trial.
 The news of the commissions unani- nous verdict as to his pres- sent sanity was carried to Thaw in the prisoners pen. He expressed sat- isfacion but not surprise. There has never been time since the conlmis- sion was appointed that the defend ant has not been wholly confident of favorable decision He declared to- day that he felt especially lucky, be- cause It was the second anniversary of his marriage.
 The decision came during the aft. ernoon session of the court, and after reports based upon significant circum- stantial evidence, had gained wide cir culation that the commission was split and could not reach an agree ment. The two lay commissioners Messrs. David Mcclure and Peter 0l-
 ney, were said to have submitted a re port declaring Thaw to be sane Whereas Dr. Leopold Putel was assert ed to have submitted a minority opin- lon to the effect that Thaw was not wholly sane despite the fact that he had pparently been able to advise h. cidly with his counsel. Justice Fitz- gerald had long consultation with the three commissioners prior to the morn- ing court session, and then announced that there would be no decision before o'clock. In the meantime Dr. Putzel withdrew from tho conference and this gave color to the report that he was at odds with his fellow members. The unanimous report, therefore, came as complete surprise. In hand ing 1t down Justice Fitzgerald gave no inkling whatever as to the finding, and as the report was not read in court few of those in the crowded room knew what the verdict had been. Mir. Jerome made his plea without perusing the report, He evidently had divined It's contents, however, although he carefully prefixed the phrase, "If the report should be unfavorable to my contention" to all of his remarks.
 Before the storm Of the district at- torneys protest broke, Justice Fftzger- aid had handed to him and to MT. Hartridge, of counsel for the defense, carbon copies of the commissioners full report. It was from the defendants counsel table that the nature of the de- cision first became known. Nh Hart ridge rushed over and whispered to Mrs William Thaw and to Mrs. Evelyn Nesbit Thaw, and then sent a messen- ger llurrying to the defendant with the glad tidings.
 When the report finally fell into the possession of the newspaper men 1t was seen to be most sweeping victory for Thaw It confirmed the reports of the excellent showing he had made before the commission in both his mental and physical tests and also indicated that the only expert testimony which the commission had taken into consldera- tion was that of the physicians who had had an opportunity to examine Thaw and talk with him almost daily during the trial The testimony of the other experts who answered from hypothetl- cal bases, was declared by the commis- | SlQQ to Db IllC AlObb SIS ' l nffcant paragraph in the report reads.
 "The direct oral and physical exam ination of the defendant by the commits sioners themselves disclosed no insani- ty in the defendant at the present time"
 With reference to the suggestions Thaw made to his counsel, MT, Delmas, for his summing up speech, which the district attorney declared were evil dences of insanity and were so attested by the alienists he introduced, the com mission says:
 Many of these suggestions were deemed valuable and were adopted by l his counsel, and examination of the let ters referred to shows that generally the suggestions contained in them were n1a- terial, sensible and apparently the product of a sane mind"