The sun., 1908-06-13
ASK NEW ASYLUM FOR THAW
REQUEST REFERRED TO THE JUS
TICE WHO TRIED HIS CASE.
Nrorschauscr Declines to Act Until Downing
Has Been Appealed To--JerOme Not
Opposed to His Transfer to Middle.
town II He Can BE Safeguarded.

town II He Can BE Safeguartied.
When attorneys representing Harry Thaw
appeared before Justice Morschauser Of
the Duchess county Supreme Court in the
rooms of the Bar Association Of New York
Yesterday afternoon to argue for a transfer
ence of their client from the Matteawan
state Hospital for the Criminal Insane to
n State asylum where the criminal insane
are not confined the Justice declared that
thew would have to take their case before
Justice Bowling, who first committed Thaw
TO the Matteawan asylum after the render
ing Of the verdict in the second trial. JUS
tice Alorschauser said that although he was
strongly favorable to the removal Of Thaw
to some asylum other than that at Mnttea-
wan he did not feel at liberty to reverse the
original commitment order made by Justice
Bowling.
The Justice advised that Col. Franklin
Bartlett, who is representing Mrs. William
Thaw, 20 before Justice Dowling with an
application that the Justice modify his
original commitment to Matteawan to read
Tho Middletown State Homeopathic Hos
pital. the institution to which Mrs. Thaw
would have her son transferred. Justice
Morsohauser added that if Justice Bowling
should refuse to entertain Col Bartlett's
application he himself would listen to rea-
sons why the transfer should be made
District Attorney Jerome. who also ap-
reared before the Dutchess county Justice
in the proceedings yesterday, offered no
objection to the ruling. He said that the
State was not seeking to punish Harry Thaw
further by insisting upon his confinement
in the asylum for the criminal insane, but
he intimated that a change to another
ssvlim might endanger the safety OF the
public because of tho easiness OF escape
under the modified vigilance kept in State
hospital for the harmless insane.
Col BARTLETT who made the arguments
Yesterday, was accompanied by A. Russell
Peabody and James G., Graham, the New
burgh lawyer who conducted Thaw's case
on the writ Of habeas corpus before Justice
Morschauser in Poushkeepsie last month
District Attorney Mack of Dutchess county
and Assistant District Attorney Garvan
from Mr.. Jerome's Office were with the
District Attorney DR.. Amos I. Baker
acting superintendent of Matteawan Asy-
lum and DR.. Austin Flint, Jerome's chief
alenist in both of the murder trials, listened
to the proceedings.
In his brief opening address Jerome
called to the attention Of the Justice the
fact that nothing in the proceedings that
had followed the attempt to secure Thaw' 9
discharge from the asylum on the babeas
corpus writ had served to change the valid
ty of Justice Dowling's original writ of
commitment. jerome urged that Justice
Morschauser should remand Thaw back to
the Matteawan asylum, there to stay until
his attorneys should obtain revision Of
the original commitment from Justice
Dow!ing
In opening his argument in Thaw's behalf
Col. Bartlett stated that since the matter
of the final disposition of the Matteawan
prisoner was still sub judice he wanted to
offer in support of the plea for the transfer
Of the prisoner the fact that in one par
ticular not yet disclosed the original COM
mtment by Justice Dowling was unoon-
st.tdtional. The attorney admitted the con-
stitutonality Of Section 45i Of the Penal
Code, under which Thaw was committed,
but contended that under the spirit Of Sec
Lion $50 of the same code the jury in the
second murder trial should have made
supplemental finding to the effect that the
release of the acquitted man at large would
be a menace to the community. No such
supplementary finding was made at the
time and the Justice presiding did not take
cognizance OF this commission, said Col.
Bartlett.
-But the main point of my argument
is this" "the lawyer continued: The
State Of New ork has discharged this
man through the Supreme Court as one
innocent OF crime. 1t is not within the
province or the right of the State further
to punish this man now restrained az an
insane criminal. 1t Is the recognized duty
OF the State through its institutions for
the care Of the insane to make every effort
ta bring back to mental health each lunatic
there confined 1t must be apparent that
being himself no criminal in the eyes OF
the law Harry Thaw cannot live under
any conditions save those OF cruelty II
surrounded by the criminal insane.
The Supreme Court has unlimited power
in determining what disposition shall he
r'lace of one adjudged insane, and the state
lhnacy Commission cannot run counter
TO the Supreme Court in this regard. ]
appeal to you in behalf Of the mother of
Harry Thaw his brother, sister and friends
10 order his removal 10 State institution
where, If he be indeed insane, the surround
irgs will be such as to be conducive TO his
recovery"
Judge Morschauser interrupted to state
that II was undoubtedly true that in his
present status 1haw was not an object
for further State punishment. As one
criminally insane. Thaw should now be
only the object of the States care and
restraint until such time as ii can be
proved that his liberty would not endanger
pubic safety
II has been great question with me"
raid the Justice to try and determine what
would be the effect OF sending haw back
10 Matteawan. Since the physicians from
lrat institution have appeared against
hm in his effort to be released there must
be feeling of oppression in his mind. and
10 60 back to that institution believing
that the head of the asylum was inimioably
disposed toward his welfare would. l be-
heVe. have very bad effect upon his men
tai health and possibly would make his
confinement there one OF undue cruelty.
Yet | do not feel competent to interfere
with Justice Dowlng's original commit
ment. Since | have refused to entertain
the writ to release Thaw from Matteawan
it is my duty to remand him to that insti-
tuition. / have made up my mind that
Justice Dowling should review his original
commitment upon application by Thaw's
attorneys rather than that l should reverse
IL by ordering the patients transfer to
another asylum over that commitment
Il will fill out the order remanding Thaw
to Matteawan, but will withhold the sig
nature until such time as you shall have
made application to Justice Dowling for
hearing on the matter and he has decided
upon the case. If Justice Dowling refuses
to amend his original commitment | will
entprtnin a writ cf huhana nprDua and baar