The San Francisco call., 1910-11-13
THOMPSON MAY BE
GIVEN new TRIAL
Judge Dunno Doubts Sufhclency
of Testimony in Swan
Murder Case
Evidence of Marie MeSser=
schmidt as to Criminality
Lacks Confederation

Robert Thompson, alias -'Dr. Grant"
convicted Of the murder OF Eva Swan
within month OF his Indictment
stands an excellent chance of having
the jury's verdict set aside and new
trial granted without taking his case
10 the court of appeals
Judge Dunno. who presided at the
trial listened yesterday to Attorney
Robert FerraTs motion for new trial
and intimated that he entertained grave
doubt as to whether the evidence Of
the accomplice. Marie Messerschmidt,
was corroborated. as required 10y law.
II he decides that there was no legal
corrobation he will order that Thomp-
son be retired. AS Assistant District
Attorney Brennan wishes TO submit
authorities on the point. Judge dunno
did not decide the motion YESTERDAY
The matter viii be taken up again TO-
morrow.
POWER OF TRIAL JUDGE
Although 1t is very seldom done, the
trial Judge has power TO set aside
fury's verdict when he is convinced that
The testimony does not justify conVlc-
tion. Thompson's attorneys, ROBERT
Ferra1 and J. J. Greeley, are confident
that Judge Dunno viii do so in this
case. judging from his remarks yester-
day. Thompson was convicted OF muir
der IN the second degree, the penalty
for which is Imprisonment for any
term from 10 years to life.
7 have grave doubts-very grave
doubts-whether the evidence Of all the
other witnesses corro oborated that of
Marie Messerschnidt as to the commits
sion Of the unlawful operation" said
Judge Dunno. 1T is admitted by the
prosecution that she IS an accomplice
and cO-cOnspiratOr, and therefore there
must be some corroborating testimony
tending to prove the operation, which
is the body Of the crime"
CORROBORATIoN NECESSARY
Brennan argued to the judge, as he
had to the jury in the trial, that the
secretion Of the remains Of the unfor-
tunate girl by burying them in the
cellar Of a Eureka street cottage and
the muulatiOn OF the body by breaking
the legs were circumstances tending to
corrOborate the testimony of the nurse.
Those circumstances might be ac-
cepted as confederation if the crime of
mutilation Of a human body were
charged. but here II is necessary TO cor
rOborate the nurse as 10 the illegal
operation" said Judge Dunno.
The assistant district attorney also
pointed to lies told By Thompson before
and after his arrest as tending to con-
firm the testimony of Marie Messer-
schmidt
OPERATION MUST BE PROVED
Thompson lied TO Paul Parker when
he said that Eva Swans aunt had sent
her $500 and that she had been taken
from the Golden gate avenue office to a,
sanitorium," said Brennan. AT that
time she was actually dying. When
Thompson told Detective Ed Wren that
he had never been near the Eureka
street cottage he also lied Taken with
all the other facts these falsehoods are
proofs Of guilt
Judge Dune however, repeated that
if the testimony of the nurse were
eliminated he could not see that there
was any other evidence connecting
Thompson with the performance of the
operation, which was the thing essen
tiaI TO be proved.
CoRROBORATTON PROMISED
When the trial Of Thompson opened
81 was conceded by the district attorney
that Marie MesSerschmidt was an ac-
oomplice and co-conspirator and the
prosecution undertook TO furnish corro-
boratiOn of her testimony. II a new
trial is granted il is improbable that
testimony in addition to that already
offered viii be available. Conviction on
the murder charge therefore would be
unlikely. and the people would have
TO fall back on the Indictment charging
mUtilation Of a human body.
Another argument made by Ferral
yesterday was that, in his address 10
the jury. Brennan went outside the
record and that counsel for the defend
ant We're prevented from objecting to
this. Judge Dunno did not pass on the