Chapter XXIV

The Judge’s Charge to the Jury--Thaw in Collapse.

JUSTICE FITZGERALD DEALS BLOW WHEN HE TELLS THE TWELVE “GOOD MEN
AND TRUE” THEY MUST IGNORE THE “UNWRITTEN LAW”--READS THE STATUTE
GOVERNING INSANITY AS A DEFENSE--BURDEN OF PROOF OF MADNESS PLACED
ON THE DEFENDANT--TELLS WHAT VERDICTS MAY BE RENDERED--“YOU MUST BE
GUIDED ENTIRELY ON THE EVIDENCE; CLAMOR, PREJUDICE, OR SYMPATHY
MUST NOT PREVAIL.”

Upon the heels of District Attorney Jerome’s closing address, Justice Fitzgerald dealt a terrific blow to the defense in his charge to the jury. Every word that he uttered seemed to the lawyers attending the trial to be a plea that the jurors ignore the most telling points of Delmas’ address and confine themselves strictly to the facts and the law on the statute books, ignoring the “unwritten law.”

Thaw heard the charge with rapidly paling face, and he almost collapsed when the judge said that the defendant must prove his insanity before he could look for a verdict of acquittal. This charge and the bitter closing speech of Jerome so worked upon the feelings of Harry that he was in a sad condition when he was taken back to the prisoner’s room. A call from his wife, however, cheered him up, and he said:

“Well, dearie, we must make the best of it, anyway. Cheer up, little girl, everything will come out all right.”

The members of the Thaw family were low in spirits, especially when they heard that the keeper of the prisoners’ room had said:

“The judge’s cold-blooded charge has scared Harry half to death. He has finally been made to realize what he is ‘up against.’”

The charge of Justice Fitzgerald was as follows:

“Gentlemen of the Jury, it now becomes my duty to give you such
instructions as are necessary to enable you to perform your duty as
jurors and to define for your information the legal principles by
which you are to be governed in reaching your conclusion of the
evidence.

“It is particularly gratifying to me that you were selected by the
people and the defense as fair-minded men, after the examination of
337 men and the peremptory challenges on each side had been
exhausted. The care with which you were severally selected to
ascertain the condition of mind of each of you as an impartial
juror must have impressed you with the spirit of justice. It must
have impressed you with that spirit of justice with which the
statutes regulating the acts of the orderly are governed.

“The admonition so frequently given at the close of the sessions of
this trial were given in accordance with the law, that you might
remain impartial. Let me impress on you the importance of the issue
you are to decide.

“The life of the deceased was in the protection of the law and had
been taken by the defendant. And the defendant is here to answer to
the law for that.

“You must take the law absolutely from the court, but of the facts
you are the sole judges. A defendant to a criminal action is
presumed to be innocent until the contrary can be proved, and in
the case of a reasonable doubt he is entitled to it.

“Let me begin by instructing you on the law of homicide. The
statute on homicide is divided into two divisions, which are again
subdivided. The two chief divisions are homicide that is criminal
and homicide that is not.

“Criminal homicides are classed as murder in the first degree,
murder in the second degree and manslaughter in the first and
second degree. Homicide unless it is excusable or justifiable is
murder in the first degree, when committed with deliberate design
to effect the death of the person killed.

“If committed with design to effect death without premeditation or
deliberation, it would not constitute murder in the first degree
but would constitute murder in the second degree. If committed
without design to effect death in the heat of passion with a deadly
weapon that would constitute manslaughter in the first degree.

“All lesser criminal homicides are embraced within the definition
of manslaughter in the second degree.

“Homicides not criminal are classed as justifiable and excusable
homicide. Homicide is justifiable when committed in the lawful
defense of the slayer or his wife or child or master or servant or
anybody connected with him in close relation.

“The defense here is that the defendant was insane at the time he
committed the act and the law applicable in the defense of insanity
is found in sections 20 and 21 of the Penal Code. Section 20
provides that an act done by a person who is an idiot, imbecile or
lunatic is not a crime.

“But section 21 limits section 20 as follows:

“‘A person is not excusable from criminal liability as an idiot,
imbecile, lunatic or insane person except upon proof that at the
time of committing the alleged crime he was laboring under such a
defect of reason as either not to know the nature or quality of the
act or to know that the act was wrong.’

“Before murder in the first degree can be done, a distinguished
jurist has said, it must appear that there was some act of
deliberation and premeditation. This, of necessity, is for the
comprehension of the jury.

“If you are satisfied that there was a design to effect death, but
without deliberation and premeditation, you may find murder in the
second degree. The defendant may be convicted under this indictment
of murder in the first or second degree or manslaughter in the
first degree.

“When it appears that the defendant committed a crime and there is
reasonable doubt of which degree he is guilty, he can be convicted
of the lowest only.

“As I have tried to impress upon you since this trial began, the
character of the victim furnishes neither excuse nor justification.
The general character of the victim is not the issue, and no matter
how bad he might have been he was entitled to the protection of the
law.

“The personal avenger of private or public wrongs is not recognized
under our law. Every person is under the protection of the law.
Good or bad, exalted or humble, all are alike covered by its
shield.

“The plea of not guilty is a denial of every material allegation
charged against the defendant, and such evidence may be presented
as will offset these allegations and establish his insanity at the
time of the commission of the act.

“The law presumes that sanity is the normal condition of man, and
wherein insanity is the plea that becomes the crucial question for
the jury to decide.

“If there existed in the mind of the defendant an insane illusion
it is not an excuse unless the illusion is of such a character that
if true it would result in his injury.

“Proof of partial or incipient insanity is not sufficient as an
excuse. The settled law of the state is that so long as that power
to appreciate the nature and quality of the act is present no man
must commit crime if he would escape the consequences.

“Under the rules of evidence the story, claimed by the defendant
prior and subsequent to this tragedy and prior is admitted, not as
affecting the character of the deceased, but that you might
consider what effect such a story had on the defendant’s mind.

“In considering her story, her credibility as a witness is highly
material, and everything that she has said or done must be taken
into consideration. Her admissions regarding the relations existing
between herself and the defendant prior and subsequent to this
tragedy and prior to her marriage or any other act should be
weighed in connection with her story.

“A wide latitude was allowed on cross-examination. You should give
due credit to all that was developed along with other facts.

“There has been no denial entered here that death resulted from
pistol shot wounds inflicted by the defendant; he committed the
act. It was not incumbent upon the prosecution to introduce
preliminary testimony to show that he was sane. The burden of proof
is upon the defense. Whoever denies sanity must prove that insanity
is present. The burden of proving a crime is on the prosecution,
but the burden of overthrowing sanity is on the person claiming
it.

“The hypothetical questions which were answered by the experts
assumed certain facts and the answer was only the opinion of the
expert on those assumed facts.

“You are not obliged nor are you permitted to accept opinions as
you would facts. In considering the testimony of medical experts,
you are to consider their experience and knowledge, and you should
consider the quality of the medical testimony and not its quantity.

“The so-called irresistible impulse has no place in the law and is
not an excuse, nor is every person of a disordered mind excused.
While the burden of proof of insanity is on the defendant, he is
also entitled to every reasonable doubt on the subject. If the
defendant knew the nature or the quality of his act, or knew that
the act was wrong, then he committed a crime.

“As to the distinction between reasonable doubt and a possible
doubt you were thoroughly examined when you were about to become
jurors.

“The law does not require that the prosecution shall efface every
possible doubt.

“It only requires that the prosecution shall go beyond a reasonable
doubt. Nothing in this world is beyond all doubt. The defendant is
entitled to every reasonable doubt and that is all.

“You may in this case, let me say once more, find the defendant
guilty of murder in the first degree, guilty of murder in the
second degree or guilty of manslaughter in the first degree.

“If you vote for acquittal on the ground of insanity you may state
that ground in your verdict.

“You must be guided, gentlemen, entirely on the evidence. Clamor,
prejudice or sympathy must not prevail. You must be guided by your
reason and your judgment.”

The case was given to the jury immediately upon the conclusion of the reading of the charge, and at 5:15 p.m., Wednesday, April 10, 1907, the jury was locked up to begin its deliberations.