The Montgomery advertiser., 1908-01-06
MAY BAR TESTIMONY
YOUNG MRS. THAw MAY NOT TELL
 HER STORY.
Friends of District Attorney Jerome Have Advised Him to Oppose
 This Line of Testimony in Trial.

New York. Jan. 5.---On the eve of the second trial of Harry K. Thaw, which will begin tomorrow before Judge Vic- tor Bowling of the Supreme Court comes the report that District Attorney Jerome may attempt his time to bar the testimony of Mrs. Evelyn Nesbit Thaw. wife of the accused man.
 At the first trial. this evidence was allowed to go before the Jury W.tn .ne consent of the District Attorney. Sew eraI criminal lawyers of prominence in their profession. have argued the point with Mir. Jerome since the close of the first hearing and have urged him to oppose this line of testimony at the trial about to begin. These attor- neys declare a vital principle or law IS involved. and that it should go to the highest courts for determination. Mir. Jerome has given no definite answer to his fellow members of the bar, and he may feel impelled to consent to arl- other recital of Mrs. Thaw's story to prevent an appearance of inconsistency with his course a year ago.
 But the representations made to him as to the importance to the community at large of testing the legality of such testimony have been unusually strong and many of the prosecuting officers closest friends would not be surprised if he should rise in his place when Mrs. Thaw is called as a witness and contend against the admissibility of her testimony with his characteristic vigor.
 Young Mrs. Thaw was allowed to testify at the first trial upon the theory that 1t was her story told to Thaw in Paris in 1903. two years before their marriage, that planted the seeds of temporary insanity in his brain. The prosecution was not allowed to test the truth or falsitv of the story, the court rule being that. regardless of it's truth, the issue had to be solely with the effect upon the defendants mind. Mr.Jerome offered witnesses who he de- clared. would contradict certain of the girl-wife's statements. but they were not allowed to be heard. The prosecu- tion had it's only recourse in a severe cross examination. but even this was allowed only on the ground of testing the credibilitv of the witness in a gen. eral way.
 Already the rule laid down in the Thaw case has served as a precedent in another. A former judge in Vir- ginia recently shot and killed young man against whom his daughter had made charges of having drugged her. The young woman admitted that she had not told her father the truth. but he was acquitted on the grounds that her story. true or false. had had the effect of inhaming the parents mind to an insane degree. The presiding the Thaw case.
 The lawyers who have approached Mir. Jerome on the subject are inclined to the opinion that there are vital diff ferences between the Thaw case and that of Wood, which served as a pre- cedent at the trial before Judge Fitz- gerald. The Wood case was one in which Woods wife told him that her father had been guilty of improper re- lations with her before her marriage and had but recently sought her again. Wood, in the heat of passion. straight way emptied a shot gun into his fath- er-in-law, killing him instantly. The defense was one of insanity brought on by the awful story of the wife. The difference pointed out that in the Thaw case the killing did not occur until three years after the recital which is alleged to have melted the deed. The lawyers say the difference is just as vital as that which the law makes in various degrees of murder--a hom. icide committed in the heat of passion being widely distinguished from a coolly planned and deliberate one.
 District Attorney Jerome has con- sistently declined to discuss the Thaw case for publication. His course as regards the all important testimony of young Mrs. Thaw will be watched, how ever, with the keenest interest. If her story is deemed admissible by Jus tice Bowling, it is declared that the cross examination to which she will be subjected will be far more severe even than the first one. The District Attorney seemed last year to have ev- cry detail of the young woman's life at command but it is said that this year he will be able to confront her with incidents of the European trips not hinted at at the first hearing.