The Montgomery advertiser., 1907-03-13

no error Tn Justice HltzEerald alOW-
 ing the prosecution to give evidence in aid of the case already ma ie. even
 though the defense had res .e1
 MT Jerome spent nearly half an hour on the citations and then resumed lis
 argument. He eventually concluded
 with the renewed request that as a
 matter of justice he be allowed
 the testimony of Stanford WhHe's
 brother-in-law. He asserted that as a
 rebuttal if not direct evidence. Mr. Smith should be allowed to testify as the state proposed to contr Adict the content.on on of the defense and show
 that Thew was of sound mind the night he killed White. Will show Murder. Eismcnt. We will go further, said Mir Jer- ome 'ai show the elements in this case witch go to make up murder in the first oegree as defined by the sla- tutes."
 MT. Jerome sat down ani Mir. Dell mas oltse to reply once more, but had hart ly started upon hIs argument wren Mir Jerome interruptei to say that he did not know of the i'npor- l tant conversation Smith had w:.h Thaw CD the Madison Square Roof Garden until the former returned from Europe last month.
 MT. rtlmas said he was at a loss to reply to a plea from the District Attorney which was of such con- stantly changing character. First he | desired Smith to testify in rebuttal, then as direct witness under the dis erection of the court and at last On the ground of newly discovered evi- dencs.
 MT. Delmas wanted to know why | MT. Jerome stated yesterday that he made such strenuous efforts to nave l Mir. Smith present at the beginning of | trfo hnr ak &k &l l were made the prosecutor did not know the character of the evidence to be obtained. MT. Jerome replied that ne knew | from the first that Smith was on the roof garden, but when he first ex- amined the witness nothing was de- yeloped as to the conversation with Thaw.
 q was at dinner at Martins te- cently." said MT. Jerome. when a friend asked me why I did not call Smith. He told me of Smiths conver- sation with Thaw and that was the | first heard of it.
 Then you would reopen the case entirely" replied MT. Delmas, Ito put in newly discovered evidence. I must protest against any such course"
 MT. Delmas closed with a plea for the court to exercise its discretion in favor of the defendant. He charged that MT. Jerome had Intentionally withheld his knowledge as to the char acter of Smiths testimony.
 Justice Fitzgerald was brief in his ruling. He said the evidence MT. l Smith had to offer was newly discov- cred and in the interest of justice should be given to the jury.
 T overrule the objection" he con- cluded.
 MT. Jerome asked then that the ex- a 1NF1af Ion. s1R F. until after the luncheon recess to en- able him to call Police Officer Edward | F. Howe to the stand. This was I granted.
 Howe said that on the night of June | 25 last he was walking down Madison | Avenue, when he met Policeman | Wright, with Harry Thaw in custody. | He accompanied them to the police | station. Mir. Jerome asked the wit ness what he said to Sergeant McCar- thy at the station in the presence of | the defendant .asgaraFre.f s.-s.tsye
 MT. Delmas objected and finally MT. Jerome withdrew the question.
 By withdrawing the question:" said MT. Delnas, 'the District Attorney ad- mits it was an unlawful interroga- tion."
 Under those circumstances I renew the question:" retorted MT. Jerome.
 And I sustain the objection" inter- posed Justice Fitzgerald
 Did you say anything to the de- fendant or did the defendant say any, thing to your asked the District Att torney.
 Thaw Answered Questions.
 Yes, I said, 80 you did some shoot ingT"
 His answer was Yes" went on the officer. Then I asked him Did you hit the party you shot atT and he an- swered, Yes, I think I did, Was it a woman or man.? I asked. It was a man. he answered"
 Tn your opinion, asked MT. Jerome of the witness, was the defendant ra. tional or irrational?"
 Rational"
 MT. Delmas here took up the cross examination of the witness, but asked only a few immaterial questions and the officer was excused.
 MT. Jerome here called pr. Carlton Flint, the physician to whom Evelyn Nesbit Is said to have gone with "Jaek" Barrymore. the actor.
 When young Mrs. Thaw was on the stand she was confronted by Dr. Flint and declared she had never seen him before.
 Do you know an actor named John or Jack Barrymorer' asked MT. Jer- ome.
 Well, I don't exactly know him." replied the witness.
 You know who he Is; you've seen him?"
 "Yes.'
 Do you know Evelyn Nesbit Thaw?"
 No" answered the doctor, evident ly reluctant to answer any questions.
 You know who she is; you saw her here in court?" insisted MT. Jerome.
 Yes, saw her here in court"
 Some time in 1902 did Jack Barry more and Evelyn Nesbit go together to your office?"
 MT. Delmas interposed an objection 'on all the grounds have before stated.'
 MT. Delmas evidently referred to the rules of evidence protecting Mrs. Thaws testimony.
 MT. Jerome did not care to argue the point and Justice Fitzgerald at once sustained the objection and pr. Flint was excused.
 MT. Jerome had no other witnesses ready and the luncheon recess was or dered.
 Mazie Toilette in Court.
 Magic Toilette, the chorus girl, was in the corridor outside the court room when tho afternoon session of the trial begin and evidently expected to be called as a witness very soon. She was accompanied by a Miss Jackson, who was a clerk in the photographs studio at the time Evelyn Nesbit posed for pictures
 James Clinch Smith was recalled to the witness stand as soon as the after noon session was convened.