Eagle River review. [volume] (Eagle River, Wis.) 1890-1927, 1908-05-29
POUGHKEEPSIE COURT DISMISSES
WRIT OF MANDAMUS SECURED
FOR WHITES SLAYER.
WANTS TO LEAVE MATTEAWAN.
Lawyers Apply Now for Permission to
Keep Petitioner in Some Other
Institution.
RIGHTS HAVE NOT BEEN DENIED

Harry N. 4naW, the slayer OF STANFORD
White. will not be released from the
lunatic asylum. This is the decision
reached by Justice Morschauser of the
supreme court, in an opinion filed early
this morning in the matter of Thaw's
application for release on writ of ha-
beas corpus.
Both points brought up by Thaw's at
torneys are decided against him. The
Justice declares that Thaw is now in
sane and should not be allowed at large
and he further declares that the COM
mitment to the lunatic asylum by Justice
Downing after the last trial of the case
was entirely legal.
Justice Morschauser's decision in part
is as follows:
l am satisfied from the evidence before
me, that the mental condition Of Harry -.
Thaw has not changed and find that he
is now insane and that 1t Is SO manifest as
to make it unsafe for him to be at large.
The question Of the constitudonality of
the 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 lib
erty without due process Of law, and that
the statute under which he was committed
does not provide method in which his
mental condition as then existing could be
legally ascertained, any method In
which his sanity could be shown.
Given Every Right.
The people contend that Thaw was not
deprived Of his liberty without due process
Of law, because he knew that If ne chose
to prove upon the trial Of the indictment
that he was insane when he killed Stan
ford White and If that defense was success
full and the jury acquitted him of the
charge against him on that ground, 1t be-
came the duty Of the court If 1t deemed
his discharge dangerous 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 council 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 COMM the defend
ant to an insane hospital until sane, undo
the provisions of section 454 Of the code o.
criminal procedure, an. Thaw having had
this opportunity of a full hearing this
right to be present in person and by coun-
sci, 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 l, section of the
constitution OF the state Of New York, nor
Of article XIV. of the United States con
stitution.
Had Opportunity at Trial.
Thaw had the opportunity in the trial
to introduce evidence of his mental condl
ton at that time which he did not do; he
should have Known that the adjudication
Of the court would follow verdict of not
guilty by reason of insanity; he was rep
resented by able counsel, who urged the
jury before whom he was tried upon
charge of homicide, to acquit him because
Of his insanity.
In constituting 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.
1t Is we'll settled that where there Is q
right Of an appeal, no court should declare
in the first instance statute unconstltu
tional unless its unconstitutionality Is
plain, especially when the statute has been
long in force and it's constitutionality Ets
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 1t has been ad
judged by competent courts that their go
ing at large would be dangerous to the pub
lie peace or safety.
The relator claims that the statute does
not provide a method i'll which Thaw
be discharged.
Section 80 of the Insanity law provides
"any inmate, not a convict, held upon
order of a court or judge in a criminal
proceeding may be discharged therefrom
upon the superintendent certificate OF re
covery made to and approved by such
court or judge.
No Injustice Is Done.
;pi, hoe kf
Ihaw or will be done to him by deprivina
him Of his liberty until such time as he car
he discharged by the method prescribed by
law.
ment for the act which led up to the deten
ton of said Thaw Is death, or a long tern
Of Imprisonment, and that said Thaw es
caued the consequences or such act solely
nv reason of his existing mental condition
do not deem it proper to allow Thaw his
freedom, suffering as he Is from some form
an attack similar to that which the jury
believe he was suffering from when ht
killed Stanford White.
In view of the existing mental condition
of said Thaw, the safety Of the public l.
better insured by his remaining In custody
and under observation until he has recov
cred or until such time as 1t shall be reason
ably certain that there is no danger of
recurring attack of the delusion Of whatever
it may be- The writ is dismissed The
der demanding the said Harry K. Thaw car
he he settled on notice pursuant Of stipulation
Thaw's lawyers will apply to the court
for permission to place Thaw in some
other institution than the Matteawa.
ASYLUM and by stipulation with the dis
trict attorney, the prisoner will be kept
in the Jail here until Justice Morschaus
or renders a decision. The justice is
holding court at White Plains this week
and will not be able to hear the appiica
+inn before next week.