The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1908-05-15
BOTH SIDES WANT TO HASTEN
HABEAs CORPUS HEARING.
MUST PROVE HIS SANITY
Permits From Sheriff Are Admission
Tickets Burden Of Proof on Ap.
pelIant il Ruling Of court-Expert
Testimony Introduced.

ing today after many delays found
Thaw and his representatives and
District Attorney Jerome's forces
equally ready to hasten the issue to
a conclusion. Thaw's stay in the
quarters Of the sheriff at the county
Jail has been much OF a relief from
the hardships of life in the Mattea-
wan insane asylum and the Tombs,
and his appearance today showed
marked improvement.
Admission to the court was restrict
ed to persons holding passes issued
by the sheriff.
AS outlined last week in the dis
patches Thaw's counsel contended
that Justice Bowling did not conform
to the legal requirements when he
committed Thaw to Matteawan. They
claim, therefore, that he is being de-
prived Of his liberty without due proc
ess Of law. They ask Justice Nor
scahused to first pass upon this ques-
tion before examining witnesses to
determine Thaws present mental con-
dition.
Few Women Present.
Thaw was brought into court and
took a seat between his attorneys, A.
Russell Peabody and James G. Gra-
ham. Before him were his detectives,
Roger O'Mara and William Moore. All
the seats in the court room were
filled, there being about 20 women
among the 400 spectators.
When the judge had ascended the
bench Mr.. Graham made formal mo-
tion for the discharge of Thaw on the
ground that no, testimony as to his
sanity or to show that 1t would en-
danger his safety to have him at large
was taken at the time Of his commit.
.ment; that his commitment does not
comply with the statutory require.
ments, and that Thaw had no oppor.
tunity to be heard as to his sanity.
Confinement Unconstitutional.
Mr.. Graham argued that Thaw's
confinement is unconstitutional.
"This man was entitled to pre-.
sumption of sanity at the time this
commitment was made," said Mr.
Graham.
Justice Morschauer said he was un'
willing to decide the constitutional
question apart from the sanity Ques
tion unless the latter would agree to
waive the question Of sanity.
After some discussion by the oppos
ing attorneys it was arranged to pro
coed with the trial with both the con
stitutional and sanity questions, the
Judge reserving his decision on the
former.
Mr. Graham offered in evidence the
court order under which Thaw was ex
amined by commission during his
first trial and adtudged sane.
Jerome objects.
Mr.. Jerome objected to the admis
sion Of the order without the min
utes of the trial but was overruled.
DR.. Frank H. Mcclure, physician
at the Tombs prison was called as .
witness for Thaw. Mr.. Jerome said
that If DIR. MCGUIRE was being quail
| fed as an expert the state would ad
NIT that he Is an expert. Mr.. Ora
l am said that the witness was not
regarded as an expert. In this hear
ing each side is limited to five ex
pert witnesses.
DR.. Mcclure said that he saw Thaw
nearly every day while he was In thu
Tombs and that he seemed perfectly
receptive and perfectly responsible
'In my opinion he was RATIONAL sAit
Dr.. MCGUIRE, "and that was my opin
| ion when he left the Tombs."
Doctor Testifies.
4
Mr.. Jerome on cross-examinatior
asked DR.. Mcclure II Thaw did no
say that there was q plot have hin
catch pneumonia and that he wal
afraid of being shut in his cell. Tn,
doctor said he did not hear Thaw sa.
that, but heard Thaw quoted as hav
ing said it.
The court ruled that Mr.. Graham
had qualified DR.. Mcclure as an e1
pert by the form nf his question
in asking his opinion as to Thaw'
mental condition.
| The court ruled that the burden Q
proof was upon Thaw as he was no
on trial under q criminal charge. Thi
ruling took Thaw's attorneys by sul
prise, and Mr.. Graham said that b
had not anticipated such an opinio
from the court.
4: May ne Rearrested.
There was report that IL Thaw
released he will be arrested on q