Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1907-03-06


the witness all taking part.
Don't duck by using necessarily
commented the district attorney.
II am not ducking," replied Mr..
Wagner with spirit, Il am telling the
truth"
Justice Fitzgerald raped with his
gavel and ordered all these remarks
stricken from the record.
AN epileptic may have done these
things" continued DR.. Wagner. but
not a single circumstance points to
epilepsy"
Mr.. Jerome next directed the wit
ness to tell all that the defendant said
to him in the Tombs regarding the
subject of epilepsy in the family.
Mr.. Jerome objected to the subject
on the ground that it was too broad,
DR.. Wagner's direct questioning hav-
ing been confined to the first three
visits to Thaw, when the witness was
of the opinion the defendant was in
sane
81 have ruled again and again on
this question" said Justice Fitzger-
aid, "the testimony as to this defend
ants statements in the Tombs was
admitted upon the ground that they
were made at time when he was in
sans. Up to now we have not gone
outside the field thus laid down"
Mr. Delmas was proceeding with
his argument, saying that when the
trial began the defense offered to
waive any privileges 1t might have as
to obstructing the ascertaining of the
truth or the falsity of Mrs Thaw's
story.
Mr.. Jerome interposed: THE argu-
ment is upon the question at issue" he
efn
speech"
Mr.. Delmas seemed taken back for
a moment. Then he said
These offensive remarks of the
learned district attorney tend to lower
the standard of the court? ?'' continued
Delmas. "They will not aid the court
or jury in arriving at a verdict in this
case"
Justice Fitzgerald pounded several
times with his gavel but Mr.. Delmas
paid no attention until he had fin
ished his remarks.
when this case began" said Mr.
Jerome in reply, your honor ruled
that every act and every declaration
of the defendant prior to the commits
sion of his offense was admissible as
bearing on whether he was of sound
was committed the general principal
applies that the declarations of the
prisoner in his own defense could not
be admitted, until preliminary proof
was offered which satisfied his honor
that the defendant was of unsound
mind when he made the statements
That they were admissible as being
facts on which the experts had based
their opinions.
"It is a fundamental rule that
once proved continues. un-
til the contrary is shown, DR., Evans
has stated positively that on his third
visit to the Tombs this defendant was
insane, and in view of that your honor
his conversations and his acts
at that time to be admitted because or
those conversations and acts the alien-
lists had based their opinions of his
There is nothing in evil
dence to show that there has been any
change in this conditions; that the in
sanity had disappeared, in fact quite
the contrary is shown.
'When the doctors first went upon
the stand they were questioned about
the defendants mental state and their
answers made the converse tions ad-
missible after the foundation was
prop, rly laid and made no objections
to their introduction, but counsel
wholly refrained from asking any
question regarding anything but the
first three visits.
II have, | submit, the right to show
the conversation at the other five
visits under these circumstances, for
the most the doctors have done was
to say he was improving-not that he
was recovered"
"What is the legal assumption be-
fore the court?" interrupted Justice
Fitzgerald.
"The legal assumption" declared
the district attorney, 'is that this de-
fendant is insane in view of the evil
dence. and the grounds for assuming
that the insane conditions as testified
to have continued
Mr.. Delmas: "Do You admit that
this defendant was insane?"
81 admit nothing" said Mr. Jer-
ONE. 81 say that as the evidence
stands. this man is shown to be in
sane"
Here Justice Fitzgerald again took
a hand in the argument and precipl-
tated a situation as dramatic as ever
was witnessed in any court.
"Was this jury empanelled for any
other purpose than to try to deter
mine whether or not this defendant
was insane upon the night of June
25 LAST" he said
your honor surely is not seeking
information on that point?" replied
Jerome.
81 am seeking to know what the
authorities are for proofs as to the
present sanity or insanity of the de-
fendant and the scope of this jury's
duty" said Justice Fitzgerald.
81 will not submit any such author
tiles" said District Attorney Jerome
doggedly.
"Are there any such authorities? 2
asked the Judge.
"They are so elemental and abund
ant" retorted Mr.. Jerome. that 1
am forced to assume that they are fa-
miliar to the court"
"Do you decline to furnish the court
with the authorities requested?" de-
manded Justice Fitzgerald.
81 have such high respect for the
courts of this Jurisdiction" said Jer-
ONE, that / will not submit authori-
ties on a question of law so elemen-
tall"
Il would have you understand. Mr..
District Attorney" said the judge with
a sharp rapa of his gavel, that 1t ts
the duty of the court to construe and
declare the law, and If you have any
authorities 1t IS your duty To submit
them. will assume that If you do
not present them you do not know ofl
any"
"If your honor will allow | will con-
tinue my argument" said Mr. Jerome.
"Dr. Evans said that only upon the
last five visits the defendants condi-
ton was improving. Your honor has
admitted the conversations upon the
first three visits as throwing light
upon the defendants condition and
upon the same ground | ask YOU to
admit the conversations upon the last
tftgfta