Arizona republican., 1905-06-10
THE CURIOUS CASE OF ELIAS
What Disp OsitiOn Can Be Made of the
 Insane Murderer

There is an unprecedented compiica- tion in the case of Theodore Elias, the murderer of Constable William Katz- enstein of Tucson about three years ago. It was pleaded in behalf of Elias at the trial that he was insane. He was. however. convicted and sentenc ed to be hanged. As the time for the execution approached 1t began to be believed that whether Elias was insane or not at the time of the killing of the officer or at the time of trail, he was then mentally unbalanced. An inquisi tion as provided for by law was held and Elias was pronounced insane. The examining physicians gave it as their opinion that he would never be other wise. He is still insane and therefore he cannot be hanged, nor under the or der of the court sentencing him to be hanged can he be removed to the in sane asylum. There is no law by which the superintendent of the institution could receive him.
 Some time ago application was made to the governor by the Pima county authorities for communication of his sentence to Imprisonment for life. If that were done and he were taken to the penitentiary he might be regularly sent to the asylum.
 When the case was presented to Gov ernor Kibbey he made the discovery. for the first time in this territory that the governor is possibly without power to commute sentences. He may par don, grant reprieves or remit fines but it /s doubtful if he can commute. The governor began looking up authorities and all of them though they are not numerous were found to be in support of his reasoning. He referred the mat ter to Attorney General Clark who has come to the same conclusion.
 In the course of their researches the governor and the attorney general found a case which had arisen in the District of Columbia during the ad- ministration of President Fillmore It was desired that the president should commute the sentence of a man order ed to be hanged. The president reach ed the conclusion that he could not commute but an arrangement was en- tered into by which the man should receive a pardon on his acceptance of a condition that he remain in the peni- tentiaTy for life. After the granting of the pardon a habeas corpus action was brought for the liberty of the convict on the ground that the condition had been imposed upon him under duress. The case went to the supreme court of the United States which decided that the conditional pardon which in effect was a communication was made legal by the convict's acceptance of it.
 But this case is not applicable to that of Elias for in his state of mind he is incapable of accepting such a condi- ton.
 The governors researches led him to another case which came up in Nevada. Sometime before the admission of Ne vada man of that territory was sen fenced to be hanged. The governor of the territory commuted his sentence. On the admission of the territory the governor granted him a pardon. In doing so he went beyond his authority in that he acted without the concur renee Of the board of pardons which the law of the new state made necas- sary. It was then brought out that the governor of the territory in commut- ing the sentence had acted without au- thority and the convict was again put in the way of being hanged.