DOCUMENT DECLARED TO HAVE BEEN SIGNED BY EVELYN THAW INTRODUCED IN EVIDENCE—CHARGES THAW CHOKED HER, AND BEAT HER WITH A RAWHIDE WHIP—ANOTHER ATTACK THE NEXT DAY—FAINTED IN AGONY—BEATEN AND CHOKED AGAIN AND AGAIN—DEFENDANT DECLARED TO HAVE TAKEN EVELYN’S DIAMONDS AND MONEY—THREATENED WITH BODILY INJURY UNLESS SHE WOULD ACCUSE WHITE, IS CHARGE—AFFIDAVIT ASSERTS WHITE DID NOT WRONG HER.
DOCUMENT DECLARED TO HAVE BEEN SIGNED BY EVELYN THAW INTRODUCED IN EVIDENCE—CHARGES THAW CHOKED HER, AND BEAT HER WITH A RAWHIDE WHIP—ANOTHER ATTACK THE NEXT DAY—FAINTED IN AGONY—BEATEN AND CHOKED AGAIN AND AGAIN—DEFENDANT DECLARED TO HAVE TAKEN EVELYN’S DIAMONDS AND MONEY—THREATENED WITH BODILY INJURY UNLESS SHE WOULD ACCUSE WHITE, IS CHARGE—AFFIDAVIT ASSERTS WHITE DID NOT WRONG HER.
Startling charges that Harry Kendall Thaw administered unmerciful lashings to Evelyn Nesbit, and tortured her because she would not accuse Stanford White, were made in the famous affidavit prepared by Abe Hummel and allowed by Justice Fitzgerald to be introduced in evidence, after Hummel had sworn the prisoner’s sweetheart—whom he later married—had signed and sworn to the document.
Threats of death were added to the pitiless whippings and torture, some of which made the girl—then traveling in Europe as Thaw’s wife—faint in agony, and on one occasion confined her to bed for three weeks, so read the affidavit. In this document Evelyn declared White did not injure her. With blanchedface—shuddering—Thaw listened to the reading of the document. He had never heard it before. The full text of this affidavit, classed by many lawyers as “the most remarkable exhibit ever introduced in a New York law court,” was as follows:
“Evelyn Nesbit vs. Harry Kendall Thaw.
“Supreme Court, city and county of New York:
“Evelyn Nesbit, being duly sworn, says:
“I reside at the Savoy hotel, Fifth avenue and Fifty-ninth street, city of New York. I am 18 years of age, having been born Christmas day, 1884. For several months prior to June, 1903, I had been at Dr. Bull’s hospital at 33 West Thirty-third street, New York city, where I had had an operation performed on me for appendicitis during the month of June, and then went to Europe with my mother, at the request of Harry Kendall Thaw, the defendant above named.
“My mother and I had apartments at the Hotel Maintenon in Paris, France, and from there traveled to Boulogne, during which time we were accompanied by Mr. Thaw. Mr. Thaw left us once for London, England. Mother and I remained at the Imperial hotel about three weeks.
“While the said Thaw was in London he wrote me a number of letters. He then returned to Boulogne and took my mother and myself and we went back to Paris, where we stayed at the Langham hotel. We left there about two weeks after and the said Thaw, mymother and I returned to London, where we located at Claridge’s hotel; that is, my mother and I lived in that place, while Mr. Thaw stayed in Claridge’s hotel for some little time and then removed to the Russell Square hotel, in Russell square, London.
“I went with Mr. Thaw to Amsterdam, Holland, by way of Folkestone. I was ill during this entire period. Mr. Thaw and I traveled throughout Holland, stopping at various places to make connecting trains and then went to Munich, Germany.
“We then traveled through the Bavarian highlands, going to the Austrian Tyrol. During all this time said Thaw and myself were known as husband and wife and were represented by the said Thaw and known under the name of Mr. and Mrs. Dellis.
“After traveling for about five or six weeks, the said Thaw rented a castle in the Austrian Tyrol known as the Schloss Katzenstein, which is situated about half way up a very isolated mountain. This castle must have been built centuries ago, as the rooms and windows were all old-fashioned. When we reached the place there were a number of servants in the castle. I saw a butler, a cook, and a maid. They were the only servants there.
“We occupied one entire end of the castle, two bedrooms, the parlor, and a drawing room. I was assigned to a bedroom for my personal use.
“The first night we reached the Schloss KatzensteinI was very tired and went to bed right after dinner. In the morning I was awakened by Mr. Thaw knocking on the door asking me to come to breakfast, saying that the coffee was getting cold. I immediately jumped out of bed and hastily dressed. I walked out of my room and sat down to breakfast with said Thaw.
“After breakfast, he said he wished to tell me something and asked me to step into my bedroom. I entered the bedroom, when Thaw without any provocation grasped me by the throat.
“I saw by his face that he was in a dreadfully excited condition. His eyes were glaring and his hands grasped a rawhide whip.
“He seized hold of me, placed his fingers in my mouth and tried to choke me. He then without the slightest provocation inflicted on me several severe blows with the rawhide whip, so severely that my skin was cut and bruised.
“I begged him to desist, but he refused.
“I shouted and I cried.
“He stopped then for a minute to rest, and then renewed his attack on me, beating me with the rawhide whip.
“I screamed for help, but no one heard me; the servants did not hear me for the reason that they were in the other end of the castle.
“Thereupon the said Thaw renewed his brutal attacks until I was unable to move.
“The following morning the said Thaw administered another castigation similar to the day before. He took the rawhide whip and belabored me unmercifully.
“I swooned and I did not know how long I remained in that condition until I regained consciousness.
“He left me in a frightful condition. My fingers were numb, and it was nearly three weeks before I sufficiently recovered to get out of my bed and walk.
“When I had sufficiently recovered the said Thaw took me to a place in — —, where Italy and Austria join and then we went to Switzerland, and stopped at a place called the Switzer house at Santa Maria.
“The next morning I made some remark and said Thaw took me to my room, and while in the room took a rattan and beat me until I screamed; when I began to scream said Thaw again stuck his fingers into my mouth.
“During all that time the said Thaw never attempted to make the slightest excuse for his conduct or state what the provocation was.
“During all the time my mother and I remained in England we occupied apartments at 5 Avenue — —. I was constantly watched by detectives and other hirelings of said Thaw, including the coachman and the valet.
“When in Paris he assaulted me with a rattan forhalf a day, at intervals of half an hour or so, striking me severely.
“One day my maid was in my room taking things out of the drawers and I found a little silver box, oblong in shape, about two and a half inches in length, containing a hypodermic syringe, and some other small utensils. I asked Thaw what that was for, and he stated to me that he had been ill, and had to make some excuse. He said he had been compelled to take cocaine. The first time I found he was addicted to the taking of cocaine I saw the said Thaw administer the cocaine to himself internally by taking small pills.
“On one occasion Thaw attempted to compel me to take one of these pills, but I refused to do so.
“While in Paris I suffered from sickness by reason of the beatings he had administered to me and that he had given me, and was confined to my bed in my room about two weeks.
“While we were in Paris the said Thaw compelled me by threatening to beat me to write a letter to a Miss Simonton, who was staying at the Algonquin hotel in the city of New York and knew my mother, asking her to come to Paris. When she got there he told her a lot of falsehoods and lies about me, telling me previously that if I did not indorse what he said he would kill me.
“While we were at the Schloss Katzenstein the said Thaw took from me without my consent and still retains in his possession two diamond rings, one sapphire ring with a diamond on each side, one pearl locket, one gold purse and $400 in money consisting of drafts from Thomas Cook & Sons. He had also in his possession in the city of Paris wearing apparel of mine, consisting of five gowns, a number of hats, and three parasols.
“I had not seen my mother since I left her in London, and I am informed within the last few weeks that she returned to the city of New York from London on the steamer Campania.
“I arrived in this city Saturday, Oct. 24, 1903, having returned from Paris by way of Cherbourg.
“Before I left Europe the said Thaw had stated to me that his lawyer, a Mr. Longfellow, would meet me at the dock and asked me if I needed anything. He said he would see that all my requirements received attention. I had a letter from him to the said Longfellow in which the said Thaw asked the said Longfellow to have me followed by detectives and also to see that everything I wanted was done and to see that I was not troubled by anybody.
“I had received a number of cablegrams from Thaw which I have delivered to my counsel, Abraham H. Hummel.
“I have been repeatedly told by the said Thaw that he is very inimical to a married man whom he said he wanted me to injure and that Thaw would get himinto the penitentiary; that the said Thaw had begged me time and time again to swear to written documents which he had prepared, involving this married man and charging him with drugging me when I was 15 years of age. This was not so; and I so told him.
“But because I refused to sign these papers said Thaw not alone threatened me with bodily injury, but inflicted on me the great bodily injury I have herein described.
“Subscribed to before me this 27th day of October, 1903.
“Sworn to before me this 27th day of October, 1903.”
(Signature of notary.)
“The state rests,” announced District Attorney Jerome after reading the affidavit, and Attorney Delmas then attacked Hummel. He read the record of Hummel’s conviction in the Dodge-Morse divorce scandal, in which the lawyer was accused—just as Evelyn Thaw had accused him—of preparing a false affidavit and false testimony. When Hummel was on the witness stand he denied that in drawing the affidavit he was acting as counsel for Evelyn Nesbit; the document itself proved that he was. The papers were to have been filed, it was stated, in a suit for damages against Thaw.
More sensations were ahead.
PHYSICIANS ASSERT YOUNG MILLIONAIRE TO BE DEMENTED—ANGRY PROTEST BY DELMAS—SENSATIONAL ARGUMENT BY DISTRICT ATTORNEY—BAD FAITH CHARGED TO COUNSEL—LUNACY COMMISSION IS DEMANDED—THAW’S LETTERS USED TO QUESTION HIS SANITY—COURT TAKES QUESTION UNDER ADVISEMENT.
PHYSICIANS ASSERT YOUNG MILLIONAIRE TO BE DEMENTED—ANGRY PROTEST BY DELMAS—SENSATIONAL ARGUMENT BY DISTRICT ATTORNEY—BAD FAITH CHARGED TO COUNSEL—LUNACY COMMISSION IS DEMANDED—THAW’S LETTERS USED TO QUESTION HIS SANITY—COURT TAKES QUESTION UNDER ADVISEMENT.
After the reading of the shocking affidavit, District Attorney Jerome swore five of the alienists for the defense, at one time. He sought, through asking them the same hypothetical question put by the defense, to prove that Thaw was insane both at the time of the murder and at the time of the trial.
“I do not believe Harry Thaw was sane at the time he shot Stanford White, nor do I believe he is sane now,” declared Dr. Graeme M. Hammond. “I do not know whether he will ever recover.”
Dr. Smith Ely Jelliffe, professor at Columbia Medical School, swore he was convinced Thaw was crazed at the time of the murder, but that he “had a sort of insane knowledge” of what he was doing.
Dr. Charles W. Pilgrim asserted Thaw “Did not know the nature or the quality of his act on the Madison Square Roof-garden.” Dr. Minas Gregoryalso swore the prisoner was insane at the time of the crime, and others made the same statement.
This was a startling change of base for the prosecution. Instead of trying to prove the young millionaire was sane both at the time of the tragedy and at the time of the trial, Jerome astounded the legal world by endeavoring to prove him hopelessly insane. The prosecutor had given up all hope of securing a verdict which would make the death-chair the penalty.
Delmas was angry.
“We propose,” he shouted, “honestly to convince you, Mr. Jerome, that Thaw was insane when he shot Stanford White—and sane now—by the very witnesses whom you have subpœnaed and brought into court for the obvious and only conceivable purpose of telling to this jury under oath the truth and the whole truth.”
The jury was ordered to leave during arguments over further testimony of alienists.
In his startling argument after the jury retired Mr. Jerome said:
“I want to explain and make my position clear. As I understand the matter Dr. Hamilton, who was originally called into the case by the defense, is ready to testify that in his opinion this defendant was insane, that he was of unsound mind when he committed the homicide, and that as he sits at the tabletoday he is suffering from a mental disease known as paranoia, a disease in which the sufferer until the last stages of the disease is capable of knowing the nature and quality of his acts.
“I understand that Dr. Hamilton so advised the defendant’s counsel and that his counsel was then changed.
“I am willing to throw open the door wide, and ask to let all these facts come out, but I will not agree to Mr. Delmas confining his questions to these four visits and keep me down to the close limits of evidence and not be allowed to go into the real facts of the case.
“Your honor knows,” continued District Attorney Jerome, “what my position here has been all along. We have no right to be here trying this man if the real facts are known. Your honor knows that I have tried ever since this case opened to bring out these facts and that I have not been able to do so.
“If the real facts as to the mental condition of this defendant can be brought out the court would be shocked and horrified and would stop this trial instanter. So deeply have I been impressed with all this that I have served notice on the attorney of record that when this case is over, if I am convinced they possess the facts that I believe they possess, I will lay the matter before the Appellate division of the Supreme court.
“There is not a man who has seen this defendant sitting there at the table who believes he is capable of advising counsel. We are today trying a man who is insane, while under the law he is sane. He is a paranoiac, and while he is insane he is not insane in the eyes of the law, for strictly speaking he knows the nature and quality of his acts.
“A man named Taylor went to death under exactly similar circumstances. The Appellate court said that he was insane, but he was a paranoiac, and while his act was committed as the result of a delusion, this delusion was not such as would have made his act justifiable had it been true. It was one of the most gruesome acts the law has ever done.
“In five minutes time,” cried the prosecutor, banging his fist on the lawyers’ table, “I can show that this man is incapable of advising his counsel as he sits here in court. I will present facts which will prevent this trial from going further!”
“In view of the statement made by the district attorney,” said Justice Fitzgerald, “I now ask that I be given all the information in the possession of either counsel—all the evidence as to the defendant’s present state of mind which can be presented to the court. I do this before instituting the proceedings I understand have been asked for.”
Mr. Delmas wanted to know if a commission in lunacy was under discussion.
“The court,” replied Justice Fitzgerald, “is asked to hear testimony while the jury is out of the room, and then to determine its course.”
“All of my own experts, Dr. Bingaman, the family physician, and Dr. Deemar, the physician to the Copley family, have informed me,” said District Attorney Jerome, “that this man is suffering from paranoia. This paranoia is characterized by systematized delusions. While suffering from one of these insane delusions this man shot and killed Stanford White.”
“Did your own experts tell you that?” inquired Justice Fitzgerald of District Attorney Jerome.
“They certainly did,” replied Mr. Jerome, “but from the record of the case I was prevented from bringing this out. I was bound down to a hypothetical question, and my witnesses testified only as to the hypothetical question. There is heredity in this man which he cannot avoid.”
Mr. Delmas again arose and inquired if a commission in lunacy had been applied for.
“I so understand it,” said Justice Fitzgerald, “if the court shall so decide.”
“We are prepared to combat that application,” said Mr. Delmas.
“I have made no formal application,” explained Mr. Jerome. “I submit to your honor the fact as he sits there the defendant is incapable of directing his defense. I leave the matter entirely to the court.”
Mr. Delmas declared Mr. Jerome’s charges were entirely unsupported.
“The district attorney’s remarks were made under his oath of office,” said Justice Fitzgerald, with some display of feeling.
“He has appealed to my conscience, and I now demand the production of all the evidence which any of counsel may possess.”
Mr. Delmas said he understood Mr. Jerome to imply unprofessional conduct on the part of the defense in suppressing testimony.
“There was an implication of misconduct,” said Justice Fitzgerald.
“I hear of it today for the first time,” said Mr. Delmas.
Mr. Gleason here asked to be heard in behalf of the defense.
“I desire to say,” said Mr. Gleason, “that when this case began I attempted to introduce evidence on the very point which the district attorney now demands, but it was ruled out on his own objections.”
“I remember,” said Justice Fitzgerald, “ruling out such testimony on the ground that it was in relation to collateral lines.”
“We have made a perfect defense here,” asserted Attorney Gleason, “and it is the duty of this court to submit that defense to the jury— —”
“This court does not need any instructions as toits duty,” interrupted Justice Fitzgerald. “That is a matter the court can attend to for itself. All I want is all of the information I can get on this subject. The court wants this information, but if I can not get it, I will have to act as I see fit.”
For a moment all the lawyers were talking excitedly at once, and Justice Fitzgerald was forced to rap sharply with his gavel. Finally Mr. Jerome made himself heard.
“The court has asked for all the facts I have in my possession, and I will willingly furnish them. I will give them in the form of an affidavit. I will also furnish the affidavit of Dr. Mabon and Dr. MacDonald, and if his professional privilege is waived I will have an affidavit from Dr. Hamilton.”
“The learned district attorney has just said that this defendant is at this moment so insane as not to be able to instruct his counsel,” broke in Mr. Gleason in an angry tone, “and now he asks that this man whom he has dubbed insane waive a privilege.”
“His attorneys can waive it for him,” said Mr. Jerome.
“The district attorney knows that that cannot be done,” was the reply.
“We will get the other affidavits first,” said Justice Fitzgerald, “and then we will discuss that matter.”
Several other clashes took place, and ended in aformal demand by District Attorney Jerome that a commission in lunacy be appointed to pass on the mental condition of Harry Thaw, that the young prisoner might be sent to a mad-house at once if found insane. Justice Fitzgerald asked time to consider the question, and demanded from both sides the names of all the alienists involved in the case, to guide him in selecting a commission.
Jerome was happy. He made this statement:
“The situation is just what I have been looking for all during the trial. A man who should be incarcerated in an insane asylum should not be on trial for his life.”
The justice held a special session of court, with the jury absent, for the purpose of receiving affidavits from alienists for both sides, to aid him in determining whether or not a commission in lunacy should be appointed. Mr. Jerome called the court’s special attention to the following statements by Dr. Carlos MacDonald:
“After careful examination of the exhibits and the hypothetical question and the testimony and affidavits of Mr. Cobb and assuming evidence stated in the case to be true, my personal observation, in court during the trial and also including certain observations that I made of the defendant in the library of the district attorney’s office on the 27th day of June, 1906, I am of the opinion that thedefendant is now and for some time past has been suffering from a form of mental disease commonly known among men skilled in mental diseases as paranoia. Yet it is my opinion, based upon what has just been enumerated, that when the defendant killed Stanford White on the 25th day of June, 1906, he was then suffering from said mental disease commonly known as paranoia, but that his then mental state was such that he knew the nature and quality of the act that he was doing ... and that he then and there knew such act on his part was against the current morality of the people of this state and in violation of law.
“I am of the opinion, upon the facts above enumerated, that the mental disease commonly known as paranoia, from which the defendant was suffering on the night of June 25, 1906, is a form of mental disease from which it is reasonably certain he will not recover, and that the discharge of the said Harry K. Thaw would be dangerous to public peace and safety, and that he should be committed to an institution for the insane.”
In arguing to secure the investigation of Thaw’s mental state, Mr. Jerome said:
“As long as forty days ago, Dr. Austin Flint, one of the state’s alienists, came to me in my office and told me that after watching Thaw in court every day of the trial he was solemnly of the opinion that the defendant was not capable of instructing his counsel.I was much concerned, and with my assistant and Drs. MacDonald and Mabon held a long conference. I then called in other alienists, and after submitting to them all the evidence I had in my possession they joined with the others in declaring Thaw a paranoiac.
“I am convinced Harry Thaw should be tried for his life.”
To strengthen his argument, the prosecutor gave Justice Fitzgerald several letters written by Thaw to J. Dennison Lyon, his Pittsburg banker. Some were written before the tragedy and some while Thaw was in the Tombs, but all, Jerome asserted, went to show Thaw was insane. One of these letters, written from the Republican Club, was as follows:
“Dear Denny—I’m sorry that the manager of Miss N’s (Evelyn Nesbit) hotel is an idiot. She stopped one night at a place called the Cumberland, but was disturbed by street noises. No one was moved, and all meals were served. Now she has a better place, with a nice woman—Mrs. Kane (Caine), a friend of her family.
“I never saw this Sweat, nor spoke nor wrote to him. You know of her misfortunes.
“Mr. Holman married her mother three years too late. He is trying to keep her quiet, and must do so. Should the facts come out, no one but would believe she sold the child to the most notorious dastard in New York. Everything proves it.
“I, and a few other persons, know she did notmean wrong, but since infancy she was jealous of and disliked the child, and was gulled to an unbelievable extent by this blackguard and — — —”
Some rambling letters about transactions in stocks followed this, and then came these letters:
“Dear Denny—I’m sorry to trouble you, but I don’t understand. I was overdrawn $10,063.36. Paid in $8,982.70. (6370). (?) Did you make a note for $10,000—leaving my balance near $9,000 or make a note for $1,130.85, leaving no balance?
“I lost almost nothing at M. C. playing. Just $1,400 for four weeks—a good deal less than the percentage. I bought some pearls and a strong automobile.”
This letter was written after the trial started:
“Dear Denny—The package arrived safely, but I can’t send them the slip for 11 (eleven) days, as we thought it best to leave bundle sealed in Gleason’s desk until he returns. He worked exceedingly hard circumventing the crooked deal between Jerome’s first assistant and that judge—and will combine rest with affairs. Friday he starts for Mexico with — —. If needed a telegram will always catch him, then he could be back in two days—if we see a chance for an early trial before any other judge—but we believe it will be first week January.“All very well. Yours very sinc’ly,“H. K. Thaw.“P. S.—I hope these blackmailers try you again.”
“Dear Denny—The package arrived safely, but I can’t send them the slip for 11 (eleven) days, as we thought it best to leave bundle sealed in Gleason’s desk until he returns. He worked exceedingly hard circumventing the crooked deal between Jerome’s first assistant and that judge—and will combine rest with affairs. Friday he starts for Mexico with — —. If needed a telegram will always catch him, then he could be back in two days—if we see a chance for an early trial before any other judge—but we believe it will be first week January.
“All very well. Yours very sinc’ly,
“H. K. Thaw.
“P. S.—I hope these blackmailers try you again.”
The following peculiar letter no one in court could understand:
“Dear Denny—or Frank: Please try to remember who was — —. It is said a relative of his is on my jury. If he is friendly or neutral only write me a brief answer, but if he had any trouble with you or I or is unfriendly please telegraph, ‘The iron is,’ eh? I will know what you mean. I hope he is all right, we can leave jury as it is. Of course, this is very secret.“All well. Y in haste.H. K. Thaw.”
“Dear Denny—or Frank: Please try to remember who was — —. It is said a relative of his is on my jury. If he is friendly or neutral only write me a brief answer, but if he had any trouble with you or I or is unfriendly please telegraph, ‘The iron is,’ eh? I will know what you mean. I hope he is all right, we can leave jury as it is. Of course, this is very secret.
“All well. Y in haste.
H. K. Thaw.”
The defense presented evidence equally strong, and Justice Fitzgerald plainly was in a quandary.
EVELYN THAW CARRIES TRYING INFORMATION TO HER HUSBAND—ACCUSED ISSUES STATEMENT—PERSONNEL OF THE COMMISSION—JEROME BALKS—REMARKABLE INQUIRY IS RUSHED—THAW SUBMITS TO EXAMINATION—HOW THE YOUNG DEFENDANT PASSED EASTER.
EVELYN THAW CARRIES TRYING INFORMATION TO HER HUSBAND—ACCUSED ISSUES STATEMENT—PERSONNEL OF THE COMMISSION—JEROME BALKS—REMARKABLE INQUIRY IS RUSHED—THAW SUBMITS TO EXAMINATION—HOW THE YOUNG DEFENDANT PASSED EASTER.
To the surprise of every one connected with the case, Justice Fitzgerald on March 26, suddenly called District Attorney Jerome and the lawyers for the defense into a conference and announced his decision to appoint a commission to pass upon the sanity or insanity of Harry Thaw.
Upon the verdict of the three disinterested men whom he selected was to depend whether Thaw would ever face the jury again, or go directly to the Matteawan asylum.
The decision was embodied in a written memorandum, prepared for the minutes of the court. The court based his decision on the conflict of affidavits as presented by the opposing sides, saying they were too diametrically at odds to permit of a decision other than in favor of an impartial inquiry. After citing the suggestion made in court by District Attorney Jerome and the various affidavits presented on both sides, Justice Fitzgerald’s memorandum reads:
“I do, therefore, in pursuance of the statute in such cases made and provided, hereby appoint Morgan J. O’Brien, Peter B. Olney and Leopold Putzel, M. D., three disinterested persons, a commission forthwith to examine into the mental condition of said Harry K. Thaw, and to report to the court with all convenient speed the facts and their opinion as to whether at the time of such examination the said Harry K. Thaw was in such a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of rightly understanding his own condition, the nature of the charges against him, and of conducting his defense in a rational manner.”
The task of announcing the decision of the court to Thaw was allotted to his wife, who tearfully accepted it. Messrs. Hartridge and O’Reilly went with Mrs. Evelyn Thaw to the Tombs and there in the hospital ward they met the prisoner. This ward had been placed at their disposal because of the crowd in the usual consultation room. Thaw was cheerful.
“It is all right, dearie,” he said to his wife, “I am not afraid of a commission. I am a sane man now; just as sane as the judge himself, and I am sure that any fair-minded commission will so declare me.”
The attorneys quickly withdrew from the conference and Thaw and his wife sat for a long time together discussing what the commission probablywould do. When Mr. Hartridge came out he declared:
“The fortitude of the boy [meaning Thaw] astonishes me sometimes, and it certainly did today.”
Later in the afternoon Thaw sent out a statement, in which he said:
“Everything is perfectly satisfactory to me. I am sure I will be able to satisfy the commission that I am sane at the present time. Anything Justice Fitzgerald does is all right. He has always acted in a fair and impartial manner.”
The brothers of the defendant did not go to the Tombs, but hurried uptown with the news of the commission to their mother and sisters, who were waiting in their apartments. Thaw had divined the result of the conference with Justice Fitzgerald and was not in the least surprised.
The personnel of the commission lent a new distinction to the already notable case.
Morgan J. O’Brien, a former justice of the Appellate division of the Supreme Court, was one of the trustees, with Grover Cleveland, of the Hyde stock in the Equitable Life Assurance Society purchased by Thomas F. Ryan just prior to the insurance investigation. When he was a candidate for re-election to the bench in 1901 as a Democrat, Justice O’Brien was unopposed. President Roosevelt made a trip from Washington to Oyster Bay to cast his ballot for him.
Peter B. Olney, formerly district attorney of New York county, was a member with William C. Whitney of the commission appointed in 1879 to revise the laws of the state affecting public interests in New York city. He was a graduate of Harvard.
Dr. Leopold Putzel, the third member of the commission, was a graduate of Bellevue Hospital Medical School and had a long experience in that institution. He qualified before the State Medical Board as examiner in lunacy.
A surprise was ahead, however, for former Justice O’Brien declined to serve as a member of the board, after he had been sworn in. He gave ill-health as a reason. Attorney David McClure, a well-known reform worker in New York, was appointed to fill the vacancy.
When the commission was finally in court together Harry Thaw was brought in and found all the members of his family awaiting him. He looked exceedingly well, and smiled a greeting to his wife, mother, sisters and brothers.
The commission began its hearings at once. At the end of the session, which was held behind closed doors, Attorney Peabody for Thaw announced:
“We are perfectly satisfied.”
Hardly had the commission seated themselves when Thaw appeared. He was directed to a chair within the inner counsel rail and sat directly beneath theeyes of the men whose decision as to his mental capacity was of such vital import to him.
Thaw appeared to be in excellent spirits and sat unflinchingly under the steady gaze they turned upon him. In the big courtroom there were only the newspaper reporters and three of the prisoner’s family—his wife, Evelyn Nesbit Thaw, who has never missed an opportunity to be near him since he was placed on trial; and his two brothers, Edward and Josiah Thaw. Mrs. Thaw sat between the brothers.
After the session had formally been opened by the reading of the court’s order, Clifford W. Hartridge, acting as counsel of record for Thaw, arose and stated to the commission that his client was ready at any time to submit to such examination as the commission desired. His only request was that the hearing should be private.
“Being a prisoner on trial for his life,” said Mr. Hartridge, “he feels he should be protected as far as possible in this matter.”
Chairman McClure then announced that whatever examination of Thaw the commission might decide upon would be held behind closed doors.
District Attorney Jerome protested. He remarked that if the commissioners resolved themselves into a body of medical examiners and undertook a physical examination of the defendant in private, he would not attend such an examination.
“But the law requires you to attend the session of the commission,” suggested Chairman McClure.
“I shall attend all sessions of the commission sitting as judges in lunacy,” replied Mr. Jerome, “but I am not required to attend a board of medical examiners.”
Chairman McClure then said the inquiry the commission had in mind was a simple one—to determine whether at this time the defendant is capable of understanding the proceedings against him and of rationally advising his counsel. The commission desires to limit the scope of inquiry as far as possible. The court, he said, wished the inquiry to be brief in order that the pending trial might be disposed of at the earliest possible moment. The commission had decided not to take into consideration the conflicting affidavits submitted to Justice Fitzgerald by Thaw’s counsel and the opposing alienists, as they were considered as having been prepared solely for the information of the court.
The first two days of the hearing were taken up with a mental and physical examination of Thaw. He was asked scores of questions, but the nature of these never was made public.
While the investigation was in progress Easter came, and on that Sunday afternoon Thaw had a two hours’ conference with his wife in the Tombs prison. The visit by Evelyn Nesbit Thaw was unusual. Neverbefore had she called on her husband on Sunday. To do so it was necessary for her to obtain from Commissioner of Corrections John V. Coggey a special permit. Mr. Coggey granted it when Mrs. Thaw explained that she had been unable to see much of her husband during the week and that she wanted to be with him some time on Easter Sunday. Commissioner Coggey went to the Tombs himself and remained there during the time that Mrs. Thaw was there.
Before leaving the Tombs Mrs. Thaw said there was no significance attached to her visit. She said she merely wanted to visit her husband on Easter.
“Harry is cheerful and feels confident the commission will decide in his favor,” she said.
Mrs. Thaw looked exceptionally pretty. She was dressed in a plain brown tailor-made suit. She wore a flat, round hat of black straw, such as women wear in riding costume. Her veil was white and heavy. She looked just a little pale, and her expression was sad, but she said she felt quite well. The trip to and from the Tombs was made in the electric hansom that Mrs. William Thaw, mother of the prisoner, uses in going to and from the courthouse.
Thaw deviated from his usual custom and attended special Protestant Easter services conducted in the Tombs chapel by the Rev. Mr. Sanderson. A special choir and orchestra was engaged for the service. Thaw seemed to enjoy the music and the remarks of the minister.
CRISIS IN CASE IS REACHED—BLOW TO JEROME—EVELYN CARRIES GLAD TIDINGS TO PRISONER—THAW EXPRESSES NO SURPRISE—PROSECUTOR THREATENS TO APPEAL, BUT BOWS TO FINDING.
CRISIS IN CASE IS REACHED—BLOW TO JEROME—EVELYN CARRIES GLAD TIDINGS TO PRISONER—THAW EXPRESSES NO SURPRISE—PROSECUTOR THREATENS TO APPEAL, BUT BOWS TO FINDING.
One of the most dramatic phases of the great trial was at hand. The defense suddenly announced it had closed its case before the lunacy commission, and after a private examination of Thaw by the board Dr. Allen R. Diefendorf told the members that Thaw was a paranoic and had not recovered his sanity. “Thaw is insane now,” he swore.
The crisis came on the morning of April 4, 1907. After a session lasting nearly all night the commissioners filed into court and Chairman McClure handed the following report to Justice Fitzgerald:
“After careful examination of the defendant personally and of all the evidence we find the following facts:
“In the frequent and in some cases daily—during the several months last past—intercourse had by the defendant with the Tombs physicians, chaplains, keepers, other attendants, and the probation officer thesepersons failed to discover anything irrational in his conduct or speech.
“The defendant has taken an active part in the conduct of the trial, has made numerous suggestions orally in court and by letter as to the selection of jurors and the examination of witnesses. Many of these suggestions were deemed valuable and were adopted by his counsel, and examination of the letters referred to shows that generally the suggestions contained in them were material, sensible, and apparently the product of a sane mind.
“While the testimony of numerous experts called by the district attorney and the defendant’s counsel is irreconcilable, that given by certain experts who personally examined the defendant during the trial and since the appointment of the commission, and who of all the alienists examined had greatest opportunity of observing, disclosed the fact that no indication of insanity at the present could be found in the speech, conduct, or physical condition of the defendant.
“The direct oral and physical examination of the defendant by the commissioners themselves disclosed no insanity in the defendant at the present time. Upon all of the facts it is our opinion that at the time of our examination the said Harry K. Thaw was and is sane and was not and is not in a state of idiocy, imbecility, lunacy, or insanity so as to be incapable of rightly understanding his own condition, the natureof the charges against him, and of conducting his defense in a rational manner.
“David McClure,“Peter B. Olney,“Leopold Putzel.”
This was a staggering blow to Jerome, who protested loudly. The defense was elated. Thaw was not in court to hear the decision, and the jurors also were barred. All the members of the prisoner’s family, however, were present, and Evelyn Thaw herself conveyed the glad news to her husband. Harry was not surprised at the finding.
“It is only what I expected,” he declared. “I am as sane as any man on earth.”
The district attorney, who had been threatening to “appeal to the Appellate court and have the trial stopped,” suddenly decided to yield to the inevitable.
SWAYS JURYMEN BY HIS ELOQUENCE—WAS BRILLIANT AS A STUDENT—HONORED BY SANTA CLARA ACADEMY—STARTS POOR, AMASSES A FORTUNE—DELMAS’ METHODS—IMPORTANT CASES HE HAS CONDUCTED.
SWAYS JURYMEN BY HIS ELOQUENCE—WAS BRILLIANT AS A STUDENT—HONORED BY SANTA CLARA ACADEMY—STARTS POOR, AMASSES A FORTUNE—DELMAS’ METHODS—IMPORTANT CASES HE HAS CONDUCTED.
The supreme moment for the defense came on April 8, when Delphin M. Delmas, the master orator of the Pacific coast bar, arose to address the jury in what proved to be the greatest forensic effort heard in a New York court since the days of Daniel Webster.
Twelve jurymen sat spell-bound under the sway of his eloquence. One wept. A mute, absorbed and sympathetic audience listened—the judge, bending forward, his eyes fixed eagerly on Delmas; the defendant hanging on the words that he hoped would set him free; the wife, the mother, the sister—their faces distorted with the pain of suspense—clutching their chairs, clenching their hands—all the while, rising and falling in waves of emotion, the voice of Delmas echoing a masterful plea for the life of Harry Thaw.
Delmas himself proved little less interesting than his wonderful argument. He first attracted attention in 1856 as a brilliant young student in Santa Clara college in California.
The following sketch of his life was published in the History of the Bench and Bar of California:
Mr. Delmas was graduated in 1862, and in 1863 received the degree of Master of Arts with the highest honors. Entering the law department of Yale College, he received from that University, in 1865, the degree of Bachelor of Laws, and at the same time was admitted to the bar of the State of Connecticut. Returning shortly thereafter to California, he was admitted in February, 1866, in the Supreme Court. In May of that year he opened an office in San Jose.
Mr. Delmas remained at the bar in San Jose for sixteen years; and, in that period, acquired a reputation for skill and ability of the first order. He had also great prosperity from the standpoint of finance. He early held the office, so important and lucrative in that rich section, of District Attorney. He was a public speaker of acknowledged force and grace. By his knowledge, talents and address he gathered around him more friends and clients that any other man of his age in the State. Setting forth without money resources he amassed a fortune. It did not take long to accomplish all this; and when his fame had spread through and beyond the State, he left the field where his most splendid visions had been realized, and established himself in San Francisco. This was on the 1st of February, 1883.
When Mr. Delmas had been in San Francisco about six years, we said of him that no lawyer in this State possessed broader knowledge or was a greater masterof his profession than he. As an advocate he is the admiration of the bar itself. His remarkable clear vision, his subtle intellect, his piercing judgment, his power of statement, have been applauded by the veterans of the profession. Before a jury, he is argumentative or pathetic, as the occasion demands. Unlike some other advocates of brilliant parts, he keeps in mind the fact that “the jury are sworn to make a true deliverance, and that to address their passions is equivalent to asking them to violate their oaths.” Mr. Delmas is very painstaking in the preparation of causes and very skillful in their management. He has great capacity for applying himself to his subject. In the matter of evidence his method is noticeable. His system is to make himself, before the case is answered “ready,” accurately, mathematically if possible, master of all the facts of the controversy, and especially, of those which are favorable to his adversary. Upon the trial, he takes full notes of everything that is said and done. It is an article of faith with him to state evidence to the jury with absolute accuracy; and he almost invariably prefaces his argument with a courteous invitation to his adversary not to hesitate to interrupt and correct him in case he should inadvertently fall into an error.
It would be impossible to enumerate the cases in which Mr. Delmas has taken part. His practice has been confined to no specialty, but has extended to allbranches of litigation. He has figured in almost every important case which has been before the courts during the last twenty years. The most celebrated of these is, perhaps, that of Ellen M. Colton vs. Leland Stanford, Charles Crocker, and C. P. Huntington, in which Mr. Delmas, who had for associates ex-Chief Justice William T. Wallace, ex-Judge John A. Stanly, Hon. George R. B. Hayes and G. Frank Smith, was the senior counsel for the plaintiff. This case, if regard be had to the eminence of the counsel engaged, the standing of the litigants, the amount involved, the nature of the issues, and the duration of the trial, is, doubtless, the most important that has been tried in California in the last quarter of a century. The trial lasted eighteen months—from November, 1883, to May, 1885. The arguments alone consumed nearly five months. Mr. Delmas closed the case, answering Hall McAllister and J. P. Hoge, who had immediately preceded him.
Since he was elected District Attorney of Santa Clara County, in 1867, Mr. Delmas has never been a candidate for any office, having devoted himself entirely to the practice of his profession. He was, however, appointed a regent of the University of California by Governor Stoneman, in 1884, and served until 1892. While regent he was President of the day on the occasion of the inauguration of Hon. Horace Davis as President of the university, March 23, 1888, and delivered the address of welcome.
In 1869, Mr. Delmas married a daughter of Colonel Joseph P. Hoge, of San Francisco. There are four children of this union one of whom is the wife of William S. Barnes, ex-District Attorney of San Francisco. Mr. Delmas occupies offices at 120 Broadway, New York City.