TUESDAY, MAY 2G, 1908.
THE MORNING ASTOIilAN, ASTORIA, OREGON.
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au
THAW IN RESTRAINT
His Plea for Freedom From Mat
tewan Denied
STILL AN INSANE PATIENT
Interesting Analysis of the Law
Under Which Hit Legal Status it
Found and Declared He ia a
Menace to the Public.
rOUGllKKKPSIE, N. Y., May 25.
Harry K. Thaw the slay
er of Stanford White, will nt be re
leased from the lunatic aylum. This
is the decision rendered by Justice
iMarsehauser of the Siurcmc Court in
an opinion filed early thin morning,
in the matter of Thaw's application
for release on a writ of harbeas cor
pus. ltoth point' brought up by Thaw's
attorneys are decided against him.
The justice declares that Thaw is now
insane and nhould not be allowed at
large and he further declares that the
commitment to the lunatic asylum by
Justice Dowling after the last trial of
the cac wa entirely legal.
Thaw' lawyer will to-day apply to
the court for permission to place
Thaw in some other institution than
the Matteawan asylum and by stipu
lation with the district attorney, the
prisoner will be kept in the jail here
until Justice Mnrschauser renders a
decision. The justice is holding court
at White Plains lhi week and will
not be able to hear the application
before nest week. Justice Morschau
scr' decision is as follows:
Upon application duly made, a writ
of habeas corpus was allowed by
which Harry K. Thaw was directed
to be produced in court. In the peti
tion, it is alleged that said Thaw is
illegally imprisoned and restrained of
his liberty by Amos T. Baker, acting
superintendent of Matteawan state
hospital, a state institution for the in
sane. Thaw's detention is attacked upon
the grounds:
First That he is now sane.
Second That the act and the pro
visions of which he was committed
and detained is unconstitutional and
the court was without jurisdiction to
issue the order of commitment and
such order was null and void.
The return to the writ alleges that
the said Thaw is now insane and that
the statute providing for the confine
ment of said Thaw is constitutional
and valid and that the court had jur
isdiction to make the order of com
mittment. The return is traversed by
the relator.
The events leading up to the comit
inent of Thaw, are, in brief as follaws:
On June 25, I'M, Thaw shot and
killed Standford White, He was in
dicted for this act in the county of
New York and the indictment charg
ed with murder in the first degree.
On January 23, 1907, he was brought
to trial on the indictment and during
the progress of this trial, on applica
tion of the District Attorney under
Section 658 of the Code of Criminal
Procedure, a commission was duly
appointed to ascertain whether at the
time of the trial said Thaw was in a
state of idiocy, lunacy or insanity so
as to be incapable of rightly under
standing the nature of the charge
against him and of conducting his de
fense in a rational manner. The com
mission afterward resumed to the
Court that it was their opinion that at
the time of their examination said
Thaw was sane and was capable of
understanding his own condition and
the nature of the charge against him
and conducting his defense in a ra
tional manner. This conclusion was
reached in accordance vith the pur
pose of the statute. The trial pro
cccdcd and resulted in a disagreement
of the jury. On the sixth of January
1908, said Thaw was again tried on
said indictment and acquitted on the
ground of insanity". Thereupon the
learned justice presiding at the trial,
upon the evidence made an order re
citing the vcrdinct and that the court
deemed the discharge of said Thaw
at that time to be dangerous to public
safety, and directing that said Thaw
be detained in safe custdy and be sent
4o the Matteawan state hospital, there
to be kept until discharged by due
process of law. The proof and evi
ilcnce on the part of the respective
parties have been ably presented and
the matter has been submitted.
Thaw, nt the time of his trial for
homicide, as a defense, pleaded in
sanity and presented proof to show
his insanity at the time of the killing
of White, and by the proof offered on
his behalf, the jury was convinced
that he was insane and acquitted him
upon that ground.
I am satisfied from the evidence
adduced before me that the mental
condition of Harry K. Thaw has not
changed and I find that he is now in
sane and that it is so manifest as to
make it unsafe for him to be at large.
To review the voluminous evidence
adduced on the hearing would un
necessarily lengthen this opinion.
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LOUISVILLE, KY. lonpon1:ngla. - NEW VggMj
Thaw was committed pursuant to
Section 454 of the Code of Criminal
Proceedure, which reads as follows:
Section J45Whcn defendant is ac
quitted on the ground of insanity the
fact to be stated with verdict-commit-mcnt
of defendant to state lunatic
asylum.
When the defense is insanity of the
defendant, the jury must be instructed
f they acquit him on that ground, to
state the fact with their virdict. The
court must, thereupon, if the defend- j
ant be in custody, and they deem his
discharge dangerous to the public
peace or safety, order him to be com
mitted to the state lunatic asylum un
til he becomes sane.
The question of the constitutional
ity of this law is assailed by the rela
tor, in that he claims there was no
notice given to Thaw of a hearing on
the question of insanity, that no hear
ing was accorded to him; that he
has been deprived of his liberty with
out due process of law, and that the
statute under which he was commit
ted docs not provide a method by.
which his mental condition as then
existing could be legally ascertained
or any method by which his sanity
could be shown. The people con
tend that Thaw was not deprived of
his liberty without due process of law,
because he knew that if he chose to
prove upon the trial of the indictment
that he was insane when he killed
Standford White and if that defenese
was successful and the jury acquitted
him of the charge against him on that
srround. it became the duty of the
court, if it deemed his discharge dan
gerous to the public peace or safety,
to order him to be committed to the
state lunatic asylum until such time
as he should be legally adjudged sane.
He had the right to appear in person
and to be represented by counsel and
he had the right to introduce evidence
of his present sanity.
If upon all the evidence and the
verdict of the jury the court should
decide his discharge to be dangerous
to the public peace and safety and
commit the defendant to an insane
hospital until sane under the provis
ions of Sections 454 of the code of
Criminal Proceedure and Thaw hav
ing had this opportunity of a full
hearing, this right to be present in
person and by counsel, this right of
offering proof in his own behalf as to
his present sanity and to be fully
heard in his own behalf, there was no
violation of article 1 Section 6, of the
Constitution of the State of New
York, or of Article XIV of the U. S
Constitution. Thaw had the oppor
tunity on the trial to introduce evi
dence of his mental condition at that
time, which he did not do. He should
have known that the adjudication of
the court would follow a verdict of
not guilty by reason of insanity; he
was represented by able counsel who
urged the jury before which he was
tried upon a charge of homicide, to
acquit him because of his insanity.
I have made careful examination ot
the authorities and I do not find that
this statute has ever been passed upon
by any of the courts in this state. It
has been in existence and operation
for many years and it is the duty
of the court to, presume in favor of
the validity of the statute until its
violation of the constitution is estab
lished beyond all reasonable doubt
and upon such a determination, the
result which may follow from one
construction or another is always a
potent factor and is sometimes in
aid of itself conclusive.
In construing this statute, it should
be borne in mind that the safety and
welfare of the community is of more
importance than the freedom of the
individual.
It is well settled that where there
is a riirht of an appeal no court should
declare in the first instance a statute
unconstitutional unless its unconstitu
tionality is plain, and especially when
the statute has been long in force and
its constitutionality has never been
questioned. This may well be the
rule when the effect of a declaration
of unconstitutionality ' would be to
free from needful restraint a number
of persons of unsound mind of whom
it has been adjudged by competent
courts that their going at large would
be dangerous to the public peace or
safety.
The relator claims that the state
does not provide a method by which
Thaw can be dischaarged.
Section 99 of the Insanity Law pro
vides "Any inmate, not a convict, held
upon an order of court or justice in a
criminal proceeding may be discharg
ed therefrom upon the superintend
ent's certificate of recovery, made to
and approved by such court or judge."
I believe no injustice has been done
to Thaw or will be done to him by de
priving him of his liberty until such
time as he can be discharged by the
method prescribed by law.
Bearing in mind that the usual pun
ishment for the act which led up to
the detention of said Thaw is death,
or a long term of imprisonment and
that said Thaw escaped the conse-
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quences of such act solely by reason
of his existing mental condition, I do
not deem it proper to allow Thaw his
freedom, suffering as he is from some
form of insanity with the possible
recurrence of an attack similar to that
which the jury believed he was suffer
ing from when he killed Standford
White.
In view of the existing mental con
dition of said Thaw, the safety of the
public is better ensured by his remain
ing in custody and under observation
until he has recovered or until such
time as it shall be reasonably certain
that there is no danger of a recurring
attack of the delusion or whatever it
may be. The writ is dismissed. The
order remanding the said Harry K.
Thaw can be settled on notice pursu
ant to stipulation.
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