Omaha daily bee., 1907-04-05

torney Jerome will appeal from the de-
cision OF Justice Fitzgerald in refusing
to allow him to inspect the minutes OF the
Thaw commission in lunacy, which re-
ported today. The appeal viii be In the
nature Of an action TO obtain a review Of
the Justices decision and viii be taken in
the appellate division Of the supreme court.
! NEW YORK, April A-Harry X. Thaw
today was declared sane by the unanimous
report Of the commission in lunacy ap-
pointed to inquire into his present mental
condition. The moment the decision was
handed down from Justice Fitzgerald's
/ desk District Attorney Jerome was on his
/ feet vigorously protesting against It's con-
! nrmation by the court. He declared he had
/ been excluded from the last session OF the
comisslon and demanded TO be allowed to
| have access to the minutes and steno-
/ graphic notes OF what transpired at the
/ final mental and physical examination of
/ the defendant
When Justice Fitzgerald declined to turn
tho minutes over to the district attorney,
Mr. Jerome declared he would carry the
case to the appellate division OF the su-
preme court, asking that writ Of prohibit
ton or mandamus be granted TO prevent
a continuance of the Thaw trial until the
higher court had ruled upon the legality
OF the commissions course.
Adjournment Until Monday.
Justice Fitzgerald reminded Mr. Jerome
that he had waived the statutory right OF
attending the last session OF the commits
sion by suggesting himself that ell the
attorneys be excluded from the sitting in
question. He then granted the district
attorney an adjournment until Monday
morning in order that he might have time
to prepare his application to the appellate
division. Mr.. Jerome protested that the
time was not SUFFICIENT, but Justice Fitz-
gerald cut him short with the announce
ment that the trial must be concluded
forthwith. Unless Mr.. Jerome should Sc
cure 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 delay. The
district attorney and the counsel for the
defense win be heard in argument as to
the confirmation OF the report at Mondays
session II they 80 desire.
After adjournment Mr.. Jerome issued a
statement saying he could not tell until
after a thorough examination of authori-
ties whether or not he ought to take fur
ther action in the way of an application
TO the appellate division. Should he reach
the conclusion, after examining the law,
that Justice Fitzgerald had not committed
legal error in refusing him access to the
commissions minutes, he would, of course,
take no further action. Mr.. Jerome de-
clared II he made application to the higher
court It would be because of the precedent
set By Justice Fitzgerald and not particu-
larly because Of the effect in this case.
defendant 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 the district attorneys heated discus
sion 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
report, was turned into alarm at the un-
expected 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 commits
sion's verdict was carried to Thaw. He
expressed satisfaction but not surprise.
} There never has been a time since the
} commission was appointed that the defend
ant has not been wholly confident of a
favorable decision. He declared today he
J felt especially lucky because it was the
second anniversary OF his marriage.
The decision came during the afternoon
session and after reports, based upon sig
nifcant circumstantial evidence, had gained
wide circulation that the commission was
split and could not reach an agreement.
The two lay commissioners, David Nc
Clure and Peter B. Olney, were said TO
have submitted a report declaring Thaw
sane, whereas Or. Leopold PutEel was as
serted to have submitted minority opinion
that Thaw was not wholly sane, despite
the fact that he apparently had been able
to advise lucidly with his counsel.
Judge and Commissioners Confer.
Justice Fitzgerald had a long consulta-
ton with the three commissioners prior to
the morning session and then announced
there would be no decision before o'clock.
Meanwhile Dr. Putzel withdrew from the
conference and this gave color TO the re-
port that he was at odds with his fellow
members.
The unanimous report, therefore, came
as complete surprise. In handing II down
Justice Fitzgerald gave no inlSling what
ever 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. Mr.. Jerome made his plea without
, | peruSln8 the report lie evidently had
! OWNED its contents, however although he
carefully prehxed the phrase. III the re-
port should be unfavorable TO my conten-
, | tion," TO all OF his remarks.
Before the storm Of the district attorneys
protest broke Justice Fitzgerald had handed
to him and TO Mr.. Hartridge Of counsel fol
the defense carbon copies OF the commits
sion's fun report II was from the defend.
ants coUnsels table that the nature OF the
decision nrst became known. Mr.. Hart
ridge rushed over and whispered to Mrs
william ThaW and to Mrs. Evelyn Nesbi
Thaw. and then sent messenger hur
riedly 10 the defendant with the tidings
Sweeping Victory for Thaw.
When the report finally fell into the pos
) session OF the newspaper men II was seer
70 be a sweeping victory for Thaw. II con
? flrmed the reports OF the excellent showinl
Ne had made before the commission II
both his mental and physical tests and alsS
: indicated that the only expert testimony
which the commission had taken into con
I slderation was that OF the physicians, who
! had had an opportunity 70 examine ThaV
and had an opportunity 70 talk with him al
most daily during the trial. The testimony
Z ~ the other eNperts who answered from