The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1908-01-06
EVELYN THAW MAY
NOT TAKE STAND
District Attorney Jerome Is In
Doubt In the Case
LEGALITY IS QUESTIONED
Point Is Raised by Many Lawyers
That Testimony of Thaw's Wife
Cannot Be Legally Allowed
in This Trial.
LEGALITY IS QUESTIONED

New York. January Son the eve of
the second trial of Harry X. Thaw, which
will begin tomorrow before Judge Victor
Bowling of the supreme court comes the
report that District Attorney Jerome may
attempt this time to bar the testimony of
Mrs Evelyn Nesbit Thaw, wife of the ac-
cused man. At the first trial this evil
dence was allowed to go before the jury
with the consent of the district attorney.
Several criminal lawyers of prominence
in their profession have argued the point
with Mr.. Jerome since the close of the
first hearing and have urged him to op-
pose this line of testimony at the trial
about to begin. These attorneys declare
vital principle of law is involved and
that 1t should go to the highest courts for
determination. Mr.. Jerome has given no
definite answer to his fellow members of
the bar and he may feel impelled to con-
sent to another recital of Mrs Thaws
story to prevent an appearance of incon-
sistency with his course a year ago, but
the representations made to him as to the
Importance to the controversy 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 ad-
missibility of her testimony with his
characteristic vigor.
Rule of Precedent.
Young Mrs. Thaw was allowed to tes-
tify at the first trial upon the theory that
it 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 falsity of the
story, the court rule being that regardless
of its truth the issue had to do solely with
the effect upon the defendants mind Mr.
Jerome offered witnesses who, he de-
clared, would contradict certain of the
girls statements, but they were not al
lowed to be heard The prosecution had
its only recourse in severe 'cross-exanli-
nation, but even this was allowed only
on the ground of testing theFredibility of
the witness in a general way. Already
the rule laid down in the Thaw case has
served as a precedent in another. A
former judge in Virginia recently shot
and killed a 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 infaming the parents
mind to an insane degree. The presiding
judge followed the rule set down in the
Thaw case.
Vital Differences.
The lawyers who have approached Mr..
Jerome on the subject are inclined to The
opinion that there are vital differences
between the Thaw case and that of Wood.
which served as a precedent at the trial
before Judge Fitzgerald. The Wood case
was one in which Woods wife told him
that her father had been guilty of i'm
proper relations with her before her mar
riage and had but recently sought her
again. Wood in the heat of passion,
straightway emptied a shotgun into his
father-in-law killing him instantly. The
defense was one of insanity brought on
by the awful story of the wife. The dif-
ference pointed out is 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 1t various degrees
of murder-a homicide committed in the
heat of passion being widely distinguished
from a coolly planned and deliberate one
District Attorney Jerome has consist
emily declined to discuss the Thaw case
for publication. His course as regards
the all-important testimony of young
Mrs. Thaw will be watched with the
keenest interest If her story is deemed
admissible by Justice Dowling, 1t is de-
clared that the ss-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 every detail of the young woman's
life at command, but 1t 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.