The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-05-25

muse 10 prove upon the trial OF
the Indictment that he was insane
when he killed Stanford white and IL
.nat oeIense was successful and the
jury acquitted him of the charge
AGAINST him on that ground 1t became
ane GUY OF the court. If it deemed his
ulscharge 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
doJuogeo sane He had the right to
appear In person and to be represent
eo py counsel and he had the right to
introduce evidence of his present san
ity. - = $500
II, on all the evidence and the YER
dict OF the jury, the court should de-
cloe this discharge to be dangerous
10 tne public peace and safety, and
commit the defendant to an insane
hospital until sane, under the provis-
ions OF section asa of the code of
criminal procedure and Thaw having
mad this opportunity of full hearing
this right to be present in person and
by counsel, 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 I, section 6 of the constitution
OF the state Of New Yorw. nor of ar
ticle XIV of the United States consti-
tuition
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 the
low verdict of not guilty by reason
OF insanity; he was represented by
able counsel, who urged the jury be-
fore whom he was tried upon a charge
OF homicide, to acquit him because Of
his insanity
have made careful examination of
the authorities and do not find that
this statute has ever been passed up
On by any of the courts In this state.
1t has been in existence and opera
ton for many years without question
and 1t is the duty OF the court to pre-
sumo in favor of the validity of the
statute until its violation OF the con-
stitution is established beyond all
reasonable doubt and upon such a
determination, the result which may
follow from one constitution or an
other is always potent factor and is
sometimes in and Of itself conclusive.
In constituting this statute it should
be borne in mind that the safety and
welfare of the community is of more
Importance that the freedom of the
individual 1t is we'll settled that
where there is a right of appeal no
court should declare in the first in
stance a statute unconstitutional I'M
less its unconstitutionality is plain
especially when the statute has been
long in force and it's constitutional
ity has never been questioned. This
may well be the rule when the effect
ity would be to free from needfu1 re-
straint a number of persons Of I'M
sound mind of whom it has been ad-
judged by competent courts that
their going at large would be danger
Gus to the public peace or safety.
Points Way Out.
The relator claims that the statute
does not provide a method by which
Thaw can be discharged.
Section SO of the insanity law pro-
vides "any inmate. not convict, held
upon an order of court of justice in
a criminal proceeding may be dis
charged therefrom upon the superin-
tendent's certificate of recovery, made
to and approved by such court or
judge"
1 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
punishment for the act which led UP
to the detention Of said Thaw Is
death, or long term OF impr1son-
ment, and that said Thaw escaped
consequences of such act solely by
reason of his existing mental condi-
ton I do not deem it proper to allow
Thaw his freedom, suffering as he is
from some form of insanity with the
possible recurrence of an attack SINH
lar to which the jury believed he was
suffering when he killed Stanford
White.
In view of the existing mental con-
dition of said Thaw, the safety of the
public is better insured by his remain
ing In custody and under observation
until he has recovered or until such
time as it shall be reasonably certain
iC No a.
attack of the delusion or whatever it
may be.
The writ is dismissed. The order
remanding the said Harry X. Thaw
can be settled on notice pursuant to
stipulation.