Los Angeles herald., 1907-02-06
NEW YORK LAW IN THAW CASE


NEW YORK, Feb. SIN view Of the
importance Of the trial Of Harry X.
Thaw for the killing of Stanford White
and the great interest It excites, not
only locally but throughout the coun-
try. and even abroad. a statement of
the law by which the guilt or inno-
cence of the accused must be deter
mined Will be OF interest not only to
lawyers who make no special study of
the criminal law, but to laymen as
we'll a statement OF the law on the
subject has been procured by The Her
AIDS correspondent from William l..
Clark, reviewing editor Of the Cuclo-
pedia OF Law and Procedure known
and cited as eye, and the author of
well known works on the criminal law.
For the benefit OF our readers who may
be interested i'm the case and wish to
follow the testimony as IL is published
from day to day. we here reproduce his
statement lie says:
at would be both improper and un-
fair to the defendant to express any
opinion as to his guilt at this time.
Whether he is guilty or innocent must
be determined, not on the facts which
have been decided by cmfwypvbgkmf
have been published by the newspapers
but on the facts as they appear from
the evidence which may be given at the
trial. and the question will be decided
by the jury on this evidence under the
courts Instructions as to the law. They
cannot convict unless they are con-
WINGED of the defendants guilt beyond
a reasonable doubt. and a reasonable
doubt as to his sanity at the time of
the killing will require an acquittal.
with respect to the law there can
be little question. In the first place,
ii is perfectly clear that hte so-called
'unwritten' or higher law, in the sense
in which the terms have been used in
connection with this case, has no place
in the law of New York. The innocence
or guilt of one who kills another de-
pends entirely upon the application to
the facts of the law established by the
statute and judicial decisions of the
state. OF course 1t is possible for a
jury to disregard the law as laid down
for their guidance in the charge of the
court, and this is all there is to the
idea involved in this use of the term
'unwritten law; but in this state ju-
rors are not the judges of the law, but
of the facts only, and under their oaths
they are required to decide according to
the law as given them by the court.
n. Y. Code Crom. Proc, sec. 419. If
the law is harsh as applied to the facts
of any particular case. then the remedy
ency. People VS.. Silverman, ISL N.
Y, 236.
Independently of statutory provis
ions, If a sane man Intentionally kills
another, he Is guilty of murder unless
the circumstances are proven to have
been such as to justify or excuse his
act. or to reduce it, by reason of provo
cation, to manslaughter; and if per-
son Intentionally fires pistol at an
other, an intention to kill is presumed.
AS it is concisely said in the CyClopedia
of Law and Procedure, malice is i'm
piled in every intentional and premed-
itated homicide, if there are no cir
cumstances serving to mitigate, eX-
cuse or Justify the act. q Cyc.. 70S.
Under the New York statute, assuming
that Thaw was sane, his killing of
White was murder in the first degree,
unless it was justifiable or eXcusable,
If it was committed either % from a
deliberate and premeditated design to
kill, or (2) by an act Immediately dan
gerous to others, and evincing a de-
praved mind. regardless of human life,
although without a premeditated de-
sign to effect the death of any individ-
ual N. Y. Penal Code, sec. 1873. The
killing was murder in the first degree IL
it was committed with a design to ef-
fect death, but without deliberation or
generalization. n. Y. Penal Code. sec.
1S4. While it is necessary to murder
in the first degree under the statute,
that there shall be both deliberation
and generalization. in addition to the
intent to kill, all that the law re-
quires is that the killing shall not be
the instant result of impulse, and it is
sufficient if there is some thought and
reflection on the act. and a choice and
determination as the result of such
mental action. People VS.. Hawkins,
109 N. Y, 4Os; People VS.. Barberi, 149
N. Y, 256; 21 Cyc., 726.
Under the supposed facts and cir
cumstances of the killing 1t seems clear
that there can be no question as to
manslaughter. At common law, a
homicide is not murder but man.
slaughter only, although Intentionally
committed, If it is committed in the
heat of passion caused by adequate
provocation; but passion, however
great, is not sufficient to reduce the
killing to manslaughter If the provoca-
tion is not in its nature adequate in