The Birmingham age-herald., 1907-04-05

New York, April 4-The latest issue raised in connection with the trial of II. K Thaw will be carried before the ap- pellate division of the supreme court.
 After an examination of authorities and study of the facts involved that con tnued from the hour that court ad- journed today, District Attorney Jerome tonight decided to ask the appellate court to review the decision of the commission, as the prosecutor was denied access to tho minutes of the secret session of the committee today. Adjournment had been taken until Monday to allow Mir. Jerome to decide whether he would challenge the validity of the proceedings.
 Mr. Jerome is expected to make his formal motion before a member of the appellate bench tomorrow or Saturday. Should he fail, the trial probably will be continued Monday. If on the other hand the higher court entertains his appeal, a stay of the trial until the court reaches n decision will be secured. This will mean an indefinite delay in the trial of the or iginal issue. Should the higher court find the trial judge in error, the district at torney would require considerable time to examine the minutes of the lunacy >cUm- mission before he would be prepared to resume his trial.
 New York, April 4.-Harry K. Thaw to- day was declared sane by the unanimous report of the commission in 1unacy ap- lpointed to inquire into his present mental condition. The moment the decision was handed down from Justice Fitzgeralds desk, District Attorney Jerome was on his feet vigorously protesting against it's confirmation by the court. He charged that he had been excluded from the last sessions of the commission and de- manded to be allowed to have access to the minutes and stenographic notes of what transpired at the final mental and physical examination of the de- fendant.
 When Justice Fitzgerald declined to turn the minutes over to the district attorney, MT. Jerome declared he would carry the case to the appellate division of the su- preme court, asking that writ of pro- hibition or that a mandamus be granted to prevent a continuance of the Thaw trial until the higher court had ruled upon the legality of the commissions course.
 Justice Fitzgerald reminded Mir. Jerome that he had waived the statutory right of attending the last session of the com mission by suggesting himself that all the attorneys be excluded sitting in ques- ton. Then he granted the district attor- ney an adjournment until Monday morn- ing next, in order that he might have time to prepare his application to the ap- pellate division.
 Jeorme Protests.
 MT. Jerome protested that the time was not sufficient, but Justice Fitzgerald cut him short with the announcement thd. the trial must be concluded forth with.
 Unless Mir. Jerome should secure a writ of prohibition in the meantime, Justice Fitzgerald is expected to announce on Monday morning that he has confirmed the report of the commission and order that the trial proceed without further 1e.ay. The district attorney and the coun- sel for the defense will be heard in argument as to the confirmation of the report at Mondays session of the court, if they so desire.
 After the adjournment today MT. Jerome issued statement in which he said he could not tell until after a thorough ex- animation of authorities whether or not he ought to take further action in the way of an application to the appellate court division. Should he reach the con- clusion, after examining the law on the subject, and Justice Fitzgerald had com mitted no error in refusing the commits l sion's minutes, he would take no further action. Mir Jerome declared that if he made an application to the higher court 1t would be because of the precedent set by Justice Fitzgerald and particularly because of the effect of this case.
 Thaw Not In Court.
 Thaw was not in court to hear the de- cision. The jury was also excluded and both prisoner and jurors were out of range of the4 district attorneys heated discussion Win Justice Fitzgerald. All the membeyj of the Thaw family. in- cluding the mother and wife of the de- fendant, were present, however. and their keen delight over the announcement of the favorable report from the commission was turned into alarm at the unex- pected attitude of the district attorney, whose threat to take the matter before the appellate division of the court seemed to involve another serious delay in the long drawn out trial.
 The news of the commissions unani- nous verdict as to his present sanity, was told to Thaw in the prison ccll- He expressed satisfaction but not surprise. There has never been a time since .he commission was appointed that the de- Sendant had not been wholly confid'srlt of / fhe favorable decision. II, declared to- day that he felt especially lucKy, because
 CONTINUED ON PAGE 2.)