New-York tribune., 1908-06-30
REFUSES TO MOVE THAW
DOWLING DENIES PLEA.
Justice Mills Orders Him Returned
to jail, HoScerer.

Justice Dowling of the Supreme Court who
presided at the second trial OF Harry X Thaw ie-
MED yesterday Thaws application he removed
from the Asylum for the Criminal Insane at Mat
to some other institution. the ground that
Thaw was dangerously insane person, not 10 be
punished. but TO be kept under restraint that he
might not injure either himself any one else
The court held also that the state authorities had
fhe power direct Thaw's removal If II should
he deemed proper.
In another phase Of Thaw's fight for freedom
Justice Mills heard argument White Plains yes
terday afternoon after issuing a writ of habeas
corpus on Saturday. Thaw's application for a
jufy trial TO determine HIS sanity at the present
time
on this application Justice Mills adjourned the
case until July lS, when further argument will be
heard ordering Thaw TO be returned to the Poush-
keepsie jail In the mean time Thus Thaw avoids.
for two weeks at least. a return to the asylum at
Matteawan OF which he is in so much dread
Unlike Justice Bowling. Justice Mills member
of the bench Of the Ninth Department of the Sill
preme Court. seemed yesterday distinctly 10 favor
Thaw. and Whites slayer and his counsel felt las,
night that they had better look for his
ultimate freedom than any time since his ac-
quittal Justice Mills said after the argument: II
believe il should be only matter of time when
7his man should have a fury trial I am NOT nra
pared 10 say whether it should be now or later
IN denying Thaws application Justice Dov-lng
said:
Thaw. who had taken the life of another under
cunning. dellferafiOn and
cowardce was acquitted of responsibilit% for % bis
sct on The ground Of his insanity the time of
TRe expert witnesses called his behalf and
with prenatal con5ifions m an me Ris1oTy beginning
period after the killing. Joined in declaring him
insane and the sole form of insanity testified 10
by any witness was maniac Oppressive INSANITY
1inT Therein me patent in his maniacal moods is
depressed moods is apt to commit suicide
Thaw's case. according the testimony on his
trial These ATTACKS recurrent hut AT ner-
he dat rrrir, ,al b.,
SefNauoFn- Inc sole objections TO his present
no special privileges aowea 4 HIM be ana mat bst he has has
au'horlues or the institution deem him insane.
The bitter legal fighting that has always marked
any proceedings in this case in which District
Attorney Jerome has appeared personally was NOT
wanting at White Plains Yesterday and Nr Iaron,.
had several til;s with Franklin Bartlett chief
counsel for Thaw. Mr., Jerome made the point
that Ihaw, as dangerous lunatic and a victim,
Of paranoia- should not be left in the comparative
insecurity OF a county Jail, and Colonel Bartlett
reioined that Thaw could not be clubbed ont 9,
The Jurisdiction OF the court
Colonel Bartlett suggested that Justice Mills
might feel ready, in view OF his arguments as 10
the unconstitutonanty Of the laws under which
Thaw was committed TO Matteawan by Justice
DoV-ng. TO order his discharge but contented him
self by appealing for a trial Of Thaws mental
condition by sherif's jury. He said he felt that
Thaw should have this Of absolute
right. but he willing 10 ask 1t at the discre-
tion OF the
Colonel Bartlett made his argument only after
determined opposition by Mr.. Jerome. who wanted
ten days adjournment, saying he had had no
time 10 prepare an answer 10 the writ of Saturday
He said also that the writ had been sworn out
too soon after TIE decision Of similar questions by
Justice Morschauser and in the pendency of the
application TO Justice Dowling. the issue Of which
was not then known counsel either side.
Justice Mills allowed Colonel Bartlett pre-
sent his argument when he learned that Thaw's
counsel sail for Europe morning. but
expressed his reluctance TO sit again upon Ques
tions SO recently passed upon by another justice
Of the same department.
Colonel --artlett argued that the commitment o
Thaw illegal in that il was for an indefinite
term, in that the constitutional prohibition OF de
privirg of liberty without due process o
Law violated by Justice Dowlings commitment
made under Section s54 OF the Criminal Code. ant
in that under the same section Thaw com
nitted with provision for his release except
provision in the insanity law allowing him to b
discharged in the discretion Of the superintendent
Of asylum where he confined.
Justice Mills sustained M. Jeromes argumen
that these points were disposed OF by Justic
Morschauser. although Colonel Bartlett had sa'
he would take them TO the United States Suprem
Court if necessary, and said he would decide on!
the application for jury trial, ntimating that h
favored such a trial.
There some discussion as to where ThaV
should be held during the period of adjournment
Justice Mills favored committing him TO the West
Attorney winslow said there proper &C
commodation. and Poughkeepsie was decided upon
Thaw looked well when he arrived here in cfarg
of Under Sheriff Townsend, Of Duchess, and ha'
enjoyed the trip down the river lie was takei
hack 10 Poughkeepsie this afternoon, where he vii
ne within reach of his counsel Charles MOT
scflauser. who will be in charge in Colonel Bart
let's absence.
on his return TO the Poughkeepsle lall last nlgh
Thaw was not permitted to occupy Sheriff Chan
1er-s room which had been put in order in antici
nation OF the return from Europe of the Sherl1
who IS 4 brother Of Lieutenant Governor Chanler
The jailer put UP bed for Tha" IN the corTlooi
Of the juvenile department Of the jail in which M
~su he locked only at night, having the run OF
the ,uIter hall during the daytime, where there
always a keeper on guard and using the 1aler
Office TO receive his counsel and other visitors E1t
will continue receive his meals from the motel
Thaw said was well satisfied with the ar
ransement-