The morning news. [volume] (Savannah, Ga.) 1887-1900, 1895-07-24
NO PRECEDENT IN LAW FOB IT.
THE SOLICITOR GENERAL ASKED
FOR A COMMISSION

FOR A COMMISSION
To Determine Schwarz's sanity or
Insanity-Mr. duBignOn Held That
He Could Not BE Put In Evidence
Against HimseIf-Said He Would
Not Let the Commission Examine
His Client If AppOinted-With All
Due Respect to the Commissioner,
MIR. duBignon Says the Law RecOg-
mixes Physicians as Experts on the
Subject.
Solicitor General W. W. Fraser applied
to Judge Falligant yesterday for the ap-
pointment of a commission Of physicians
to examine into the mental condition of
William Schwarz. who is now in Jail on
charge Of murder, and who has. through
his attorneys, filed a special plea of in
sanity. Schwarz's trial under that plea
is to take place next Friday.
The motion for the appointment Of such
a commission was rather an unusual one,
and was made practically on the ground
that the state was without evidence on the
subject matter of the plea, and wanted
means of obtaining it. Solicitor General
Frasers application is as follows:
In the case of the state against William
Schwarz. charged with murder. a special
plea of insanity having been filed by the
defendant, respectfully request that your
honor appoint three physicians to exam
inc said defendant as to his being sane or
insane so that the state upon the trial of
said issue can have the benefit of expert
testimony as to the sanity or insanity of
said defendant Respectfully,
w. w. Fraser.
Solicitor General, Z. ]. c.
Judge Falligant asked the solicitor gen.
eral what authority or law there was for
the appointment of such a commission. Mr..
Fraser stated that it was without preced-
ent in this state, but that it was his only
recourse in securing evidence for the state.
Without such action he stated that the
state would be practically at the mercy
of the defendant
Mr.. F. G. duBignon, as attorney for
Schwarz, stated that he had no objec-
ton to the appointment of the commits
sion asked for by the solicitor general,
but he said he would like to know what
the solicitor was going to do with the
commission after 1t was appointed. He
said he knew of no law which could COM
pei his client to submit himself to be
passed on by a commission of that kind.
The issue, he stated, was to be tried
by jury, and not by a commission. He
said that he would not let the defendant
be examined by the commission If it
were appointed, but would insist on the
trial by jury. He filed the plea in good
faith, he stated not thinking his client
in a fit mental condition to be allowed
to remain at large. If he was to be ham
pered by any ex parte trial by COM
mission, he said, he would withdraw the
special plea and go TO trial under a gen.
eral plea Of not guilty.
Mr.. duBignon called attention to the
law providing that in lunacy trial twelve
men should be selected from a panel of
eighteen, one of whom should be a ply
stefan. and that the trial should take
place before those twelve. This, he stated,
showed that the law regards physicians
as experts on the matter of insanity, by
providing that at least one member of
the jury before which the trial
takes place shall be physi-
clan. Referring to the state
ments of DR.. T. ]. Charlton to the effect
that in his opinion there is no such thing
as an expert on the subject of sanity or
insanity in Savannah, he said:
However learned Commissioner Charl-
ton may be on the subject, his state
ments are clearly in conflict with the
law as it has existed for some time"
When a special plea of insanity is filed
in a criminal case the law provides that
the Judge shall eTnpanel a special jury to
try that issue, and If the plea is sus-
tained, then the defendant SHALL by the
order of the judge, be sent to the asylum.
Mr.. Fraser cited a New York case, that
of Freeman against the people, in sup
port of his position. Mr.. duBignon held
that this case did not apply, as the COM
mission had been appointed to examine
into Freeman's condition after he had
been convicted and sentenced to be hang
ed. His position was that a defendant
could not be put in evidence against him
self He stated that the solicitor general
would have the right to use any of the
witnesses which have noted Schwarzs ac-
tions in the Jail, but that he could not go
outside and have appointed a commission
to examine into the mans condition the
report of that commission to be used
against him.
Judge Falligant took the matter under
advisement and reserved his decision. Mr.
duBignon expressed the opinion that no
commission would be appointed, but that
the case would go to trial by jury under
the special plea. The solicitor general has
already made arrangements to have an
expert brought to Savannah from Mil
ledgeville for use in this case. 1t may be
that he will have the expert brought
down, however, to hear the testimony put
in by the defendant. The defendant hay
ing made the special plea, the burden of
proving the statement contained therein
is upon him. and unless the commission is
allowed, the state will have to combat the
issue by cross-examination of the defend
ants witnesses.