The Montgomery advertiser., 1908-05-26


 
 mitment of defendant to State Lunatio
 When the defense is insanity of the if they. aequit him on that ground, to state the fact with their verdict. The court must. thereupon. if the defendant pc m custody and they deem his dis charge dangerous to the public peace or safety, order him to be committed to the state Lunatic Asylum until he be-
 The question of the eonstitutionality of this law is assailed by the relator in that he claims there was no notice given to Thaw of hearing upon the question of insanity, that no hearing was accorded to him: that he has been deprived of his liberty without due process of law ana that the statute under which he was committed does mental condition as then existed could De legally ascertained. or any method by which his sanity could be shown.
 The people contend that Thaw was 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 Stanford White and if that defense whs successful and the jury acquitted him of the charge against him on that ground, 1t became the duty of the court, If 1t deemed his dis charge dangerous to the public peace or safety. to order him to be commit ted to the State Lunatic Asylum until such time as he should be legally ad- judged sane. He had the right to ap- pear in person and to be represented by counsel and he had the right to in troduce evidence of his present sanity.
 If upon all the evidence and the ver- his discharge to be dangerous to pub lie peace and safety, and commit the defendant to an insane hospital until sane, under the provision of Section of AA C@Aa 1f (rs,, al dtaTA and Thaw having 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 be- half as to his present sanity and to be fully heard in his own behalf. there was no violation of Article l. Section 6 or the Constitution of the State of New York, nor Article XIV. of the United States Constitution.
 Thaw had the opportunity on the trial to introduce evidence of his men tai 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 req son of insanity. he was represented by fore whom he was tried upon a charge of homicide, to acquit him because of his insaDity.
 I have made careful examination of the authorities and I do not find that this statute has ever been passed upon by any of the courts in tthis State. It has been in existence and operation for many years without question and It Is favor of the validity of the statute un- til it's violation of the Constitution Is established beyond all reasonable doubt, and upon such a determination construction or another is always a potent factor and Is sometimes in and of itself conclusive.
 In construing this statute, it should he hnFna in mind that tha gafAtV and welfare of the community is of more importance than the freedom of the individual
 It is well settled that where there is right of an appeal. no court should declare in the first instance a statute unconstitutional unless its unconstitu- statute has been long in force and it's constitutionality has never been ques- tioned.
 This may well be the rule when the tionality would be to free needful re- straint. a number of persons of un- sound mind of whom 1t has been ad- judged by competent courts that their going at large would be dangerous to the public peace and safety.
 The relator claims that the statute does not provide method by which Thaw can be discharged.
 Section 99 of the inganity law pro- vides: Any inmate, not convict, held upon an order of a court or judge in criminal proceeding, may be dis charged therefrom upon the superin- tendent's certifcation 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 consequences of such act solely by reason of his ex- isting mental condition, do not deem 1t proper to allow Thaw his freedom, suffering as he is from some form of 1 insanity with the possible recurrence of a similar attack to that which the jury believed he was suffering from when he killed Stanford White. In view of the existing mental con- dition of said Thaw, the safety of the public is better insTred by his re- inaining in custody and under obser- walton until he has recovered or until such time as it shall be reasonably certain that there is no danger of a recurrence of the attack. The writ Is dismissed. The order remanding the | said Harry K. Thaw can be settled on | notice pursuant to stipulation.