The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1907-03-22
JeTOms Presents Eight in Sup
port Of His Suggestion, But
Defense Needs More Time
TILL SATURDAY At 2P. NJ,
IS ALLOWED BY THE JUDGE
No Further Hearing On Lunaoy Com.
mission Unless Fitzgerald So
rects-A Brief Session To- =.
day--Adjourn to Monday.

New York. March 21.-Dstrict Attorney
Jerome today presented to Justice Fitz-
gerald eight affidavits in support OF the
suggestion he made yesterday in the case
of Harry X. Thaw that the defendant is
now in such state of lunaey or insanity
as to be incapable of understanding the
proceedings against him or aiding his de-
fense. The court was in session for less
| than an hour.
Mr.. Delmas for the defense stated that
their answer TO the district attorney $
proposition was not ready. Justice Fitz-
gerald allowed both sides until Saturday
afternoon at 2 O'clock to file such affi-
davits as they desired with the clerk of
, the court. There Will be no further hear
ing in the matter OF the appointment Of
a lunacy commission unless Justice Fitz-
gerald SO directs, after considering such
affdavits and exhibits as are to be Of
fered Neither the jury nor Thaw was in
court today, the jury having been ex-
cused until tomorrow morning at 1880
o clock. There will be a brief session at
that time and formal adjournment until
Monday morning announced. BY Monday
Justice Fitzgerald is expected to be ready
to announce his decision
Pleads to Examine Hamilton.
District Attorney Jerome pleaded today
for permission to examine DR.. Allan Nc
Lane Hamilton orally, but in the absence
of waiver of professional privilege on
the part of the defense Justice Fitzgerald
said he would not allow the doctor to be
examined further at ibis time. Justice
Fitzgerald added significantly that he
would take judicial notice of everything
which had been adduced in evidence dur
ing the nine weeks of the trial. DIR. Ham
ilton it will be remembered on yesterday
testified that in his opinion Thaw is not
at present capable of directing his de-
fense
This question was put to DR.. Hamilton
by Attorney Gleason of the defense and
Mr.. Jerome now contends that the de-
fense thus waived the matter of profess
sional privilege.
The refusal of Justice Fitzgerald to al
low DIR. Hamilton to be interrogated in
the proceedings to tighten the conscience
of the court as to it's duty in appointing
a commission, or ordering a resumption of
the trial. was interpreted in various ways
by those in court today. The attaches
of the district attorneys office We're in
clined to the belief that DR.. Hamilton,
having already stated his opinion to JUS
tce Fitzgerald, the latter deemed it un-
| necessary to precipitate an argument as
to the waving of professional privilege.
The defense seemed inclined to the view
that Justice Fitzgerald had held DIR.
| Hamilton's evidence could not be taken
into consideration and that consequently
the district attorneys position was ma
terially weakened. DR.. Hamilton was
first called into the case by Thaw's law
yers and it was while he was in their
employ that he had made his examina-
ton of the defendant.
Must Have Waiver.
Under the law. he cannot testify unless
there is an express waiver to the man
who was his patient Mr.. Jerome's af-
fidavit submitted today embraced the
opinion of his seven experts who have
heretofore testified and a statement by
Gown S. Cobb, newspaper reporter.
who gave the text of the statement which
Thaw issued at the conclusion of Jerome S
cross-examination of his wife.
Mr.. Jerome in presenting his affidavits.
called particular attention to the one
signed by DIR. Carlos NJ. Macdonald, who
after reciting what he had Witnessed in
court, his observations of Thaw immedi-
| ately after the tragedy. and what he has
| learned as to epilepsy and insanity in va
| vous branches of the Thaw family de-
| clared that he is firmly convinced that
Thaw is suffering from paranoia, and
that while he knew enough to realize the
nature and quality of his act when he
shot and killed White. he is now and for
some time past has been incapable of un-
| derstanding the proceedings against him.
Reporters Affidavit
The reporter, Cobb in his affidavit sets
| forth the facts connected with Thaw' $
| dramatic manner of issuing his state
ment concerning Mr.. Jeromes cross-ex-
animation of Evelyn Thaw. All these
factes were narrated at the time-the in
sistance of Thaw that the reporter should
sign and seal an envelope containing the
original of the statement, and compare
the original With the typewriter copies
which were subsequently handed to him
for distribution among the other news
paper men at the trial.
District Attorney Jerome occupied most
of the time the court was in session to-
day in a personal explanation of the
reasons which had hindered him from
earlier calling the attention of the court
to Thaw's present state of mind. He said
he had long been convinced that the de-
fendant was of unsound mind, but he
had no way of legally bringing the mat
ter to the attention of the court until
Dr. Hamilton was put on the stand by
the defense. Mr.. Jerome said ne could
not have called DIR. Hamilton on a pro-
fessional privilege as the defense would
have interposed as part OF any testi-
mony the expert might have to Offer
Mr.. Demas declined again to waive any
privilege with regard to DR.. Hamilton
on the ground that II the district attor-
neys contention as to the present in
sanity OF the defendant is sound, his law
yers have no right to waive anything for
a lunat,c
It was riimoree ali day that Mr.. Deimas
would not pe in court this afternoon be-
cause Of the attitude assumed by some
of his associate counsel yesterday All
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