Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-04-11

HE OM AHA |
Of the issue you are 70 decide The life Of
a citizen within the protection Of the law,
~ Us IhaTs geo, mas ueen taken by tne de-
PENDANT and the defendant is here to am
swer to the law for that. You must take
the law most absolutely from the court
Of The facts you are the sole Judges.
defendant In any criminal action is pre-
stunned 10 bs Innocent until Tie uouttet5
be proven and IN case Of a reasonable
doubt that his guilt Is not satisfactorily
SHOWN he Is entitled TO an acquittal.
Law on Insanity.
After defining the different classes Of
homicide and the degree Of penalty at
tached to each, the court continued:
Homicide is eNcusaUle in insanity. The
law Is contained ia sections 20 and p Of tho
penal code. Section ~ says an act done Oy
Is not crime. This language Is very broad
and would at first glance appear to apply
to all persons Of unsOund mind without
regard 60 degree Of insanity.
But section q limits section 20 as follows
a person IS not eXcusable from Grim
inal liability as an idiot imbeCile, lunatic
or Insane person except upon proof that at
the time OF committing the alleged crime
he was lahuring under such defect Of rea-
son as either not to know the nature or
quality Of the act OF to know that the
act was wrong"
AS have tried to Impress upon you
since this trial began, the character Of the
victim furnishes neither excuse nor Justi-
fcation The general character Of the vic
tim is not the issue and no matter how
bad he might have been he was entitled to
the protection Of the law The personal
avcnger Of private or public wrongs Is not
recognized under our law.
Limitation on Illusions.
II there existed in the mind Of the de-
PENDANT an insane Illusion 1t is not an eX-
Cuse unless the illusion Is of such char
acter that if true it would result in his
proof Of partial or incipient insanity is
not sufficient as an excuse. The settled
law OF the state is that as long as that
power to appreciate the nature and quality
Of the act Is present no man must commit
crime IL he would escape the consequences.
Under the rule Of evidence the story
claimed by the defendants wife to have
been told by her TO the defendant is ad-
mitted not as affecting the character Of the
deceased, but that you might consider what
effect such story had on the defendants
mind. In considering her story, her cred
Utility as a witness is highly material and
everything that she has said or done must
be taken into consideration, her admissions
regarding the relations between herself and
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 ex-
animation. You should give due credit to
All that was developed along with other
facts. The letters, the will and the codocll
were not admitted under any ruling as to
their competency, but by consent Of coun-
sell
Burden of Proof on Defense.
The legal presumption Is that the de-
PENDANT was sane when he committed the
act. IL was not incumbent on the prosecu-
ton to introduce preliminary testimony 10
show that he was sane. The burden OF
proof Is on the defense.
The so-caiIed Irresistible impulse has
no place in the law and is not IN excuse,
nor is every person of disordered mimi
excused. While the burden Of proof of
insanity is on the defendant he also Is en-
titled to every reasonable doubt on the
subject. If the defendant knew the ma
ture or the quality of his act, or knew
the act was wrong, then he committed a
crime All men diner mentally and phys
ically and this makes it impossible. as
said before, for the court to Law down q
fixed rule showing deliberauon and
generalization.
AS to the distinction between reason
able doubt and a possible doubt you were
about to become jurors. A reasonable
doubt is such as might arise in me mind
OF an intelligent man, who, IL called upon
to give a reason for such doubt would not
be at loss to do so. A reasonable doubt
is not an ina ginary thing. 1t is such 4
doubt as arises from the evidence. 1t Is
have after a full fair and lmuartial
weighing Of the evidence. To all such
doubts the defendant is entitled.
Justice Fitzgerald supplemented his
charge by again clearly defining The legal
definition Of reasonable doubt and saying
]
as a reasonable doubt existed in his mind
He did this by request of Mr.. Jerome.
The defense also requested a special
charge on several points, but Justice Fitz-
gerald said that he had practically dwelt
on all Of them with the exception Of a
few. on which he declined to say any
thing He granted the defense an excep
ton TO his ruling. The jury then retired
at 5:17 p. m.
Defendant IL Detected.
The atmosphere about Thaw and the
members of his family was heavy with
gloom during the judges charge. The de-
PENDANT sat in a detected mood, his head
bowed his face pallid and his entire APP
pearance denotlng nervous, apprehen-
sive state Of mind.
A complete change had come over him
/ by the time the Judge had concluded his
/ charge. He began to realize that rea
danger menaCed him, that his acquitta
! was by no means certainty, and as ht
was led out Of the court room the debon
air style which marked his entrance yes
/ terday morning had entirely disappeared
The members of Thaw's family wer'
equally low in spirits. They recognized
the fact that the judges charge was by
no means favorable to Harry: they ooul,
not even construe II that way. None o
| Thaws counsel would comment on tn
charge, but they shared in the genera
opinion that it was adverse to Thaw
Shortly after visiting Harry In the jai
Mrs Evelyn Thaw left the building witt
Dan O'Reilly. At $3.50 o'clock the othe
members of the family left the building
Thaws counsel denied report that tn
best they hoped for was a hung jury
Under the statutes of New York murde
in the first degree is punishable wit
death, murder in the second degree by i'm
prisonment for life and manslauKhter i
the first degree by imprisonment not I
exceed twenty years II the verdict shout
be one Of acquittal on the ground OF IN
sanity the disposition Of the prisone
would rest with Justice Fitzgerald. Thay
having already been declared sane by tn
report Of a commission, which Justic
Fitzgerald has approved and confirmed.
would seem that the prisoner must b
released.
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