The Birmingham age-herald., 1924-07-31
More Days To Be Consumed In Hear
 ing
fContinued From Page One. l

(COntinued From Page One attorney closed his case after a brief bit of corroborative testimony from, the stenographer who took Loeb's confess sion. Overnight Mir Grove had decid- ed not to put into the record the fact that Loeb wept when confessing.
 Without making an opening state ment, the defenses.at once called as- its first witness ;Drs William A. White. of Washington, D. c. He was asked the four usual formalities of name, resi- denee, age and procession. Then Wal ter Baehraeh, for. lite defense said: Please state your professional ex- perience."
 Il object" interI6sed MT. Crowe.l
 "WhyY' asked 5ndge Caverfy, and the legal battle was on.
 Dr. White tilted back in his chair, crossed his fingers over his vest and for the next hour and a half of court session, held that pose while the law yers wrangled.
 From the outset Mir. Grove argued that the plea of guilty had effectually barred from the proeeedings any offer of insanity as a legal defense. Judge Cayerly pointed out that the defense had given no indication of what they expected to prove @byA ADr. Whites testi- mOny.
 How do you know they are going to plead insanity ," he asked Mir. Grove.
 By the very words of counsel for the defendants said the states at torRey.
 Degrees Of Insanity
 He referred to a statement by Wal ter Bachrach, in which the phrase 1psychopathological, conditions" were used. The judge observed there were degrees of insanity recognized in Hi pois as well as degrees of murder, but the state disputed this, saying that when n man is insane he can not dis tinguish between rigfta and wrong, but if he can so distinguish, he is thorough ly sane in legal sense.
 Again the judge assured the prOsecu- tion that this aspect of the situation would not be allowed to get into the record. but the states attorney per sisted in offering arguments and the judge called for authorities.
 Finding no precedent in Illinois, ex- cept the case of Gene Geary, a Chi eago gunman, who was declared insane after being sentenced to death and in carcerated in an asylum, which case Judge Caverly rejected-as applying to the present proceedings, the prOsecu- tion turned to other commOnwealths.
 Reads Decisions.
 Thomas MarshaH,I the states attor- ney expert on indictments and other intricacies of the law, was given the floor and started to cite decisions. Hour after hour he read from the court records fo Colorado, Georgia, Mis- sissippi, Pennsylvania, Nebraska and Great Britain.
 Clarence s. Darrow, veteran chief counsel for the defense, for the most part stayed out of the argument. Oc- casionally he injected a quiet remark when he saw opportunity to pound home a legal principle on which the defense contention rested Once, when the court tried to steer th4 prosecution back to the question as to, mitigation based upon a state of mind, and the states representatives kept on with their refusal to recognize a distinction between mental disease" and insanity, Mir. Darrow interjected: ''The statute provides the court may listen to any thing on mitigation. The legislature has given it wide latitude in that re- spect and evidence cG1eerning condition of mind is admissible"
 Again the court asked Mir. Marshall if there was not mitigat tion in murder, pointing out that there ara three de- grees of punishment.
 No" said Mir. Marshall, mot as far as sanity is concerned" s,
 Mitigation is a defense" remarked Mir. Darrow in a mild tone. He spoke words summed up the very foundation of the efforts to eve Loeb and Leo pold from hanging.
 Moral mania" and moral insanity" were repeated over and over in Mir. Marshalrs argument, each repetition bringing a vigorous gesture as he main tained that such conditions were synonymous with E'moral depravity" and therefore not proper subjects for consideration of q court charged with the duty of fixing a punishment for a 'heinOus crime"
 Several times Judge Caverly inter- rogated the state as to the effect their attitude would have on the case. Once he pointed out that Mir. Grove and his assistants had been allowed to introduce testimony by S1 witnesses without him derance by the defsaGs.
 If l should now rule out all testi- mony as to mentality which the defense offers in mitigation" he said, "cOuld I not be subject to just eensure by any court of review for acting in an arbi- trary mannerT"
 ''OnIy By Jury
 Mir. Grove and Walter Bachrach got into eolloqUy as t, the purpose of the defense, the latter again explaining that the intention was only to show there is q mental deficiency amounting to a disease, which is in itself mitigating circumstance" Mir, Grove went back to his contention that the question of mental deficiency should be decided by jury and the courts inquiry went unanswered,
 Who is going to answer fer the de- fense after the state gets through ?" MT. DarrOw was asked at adjournment tonight.
 There is nothing to answer" he said. Not one case they have cited is in point here. Some of them are 75 to 100 years old and besides they quote judges who knew little or nothing about mental deficiencies.
 You knOw," he continued quizzically, we have made wonderful strides since then. In the old days in England, no boy could be hanged who was less than