New-York tribune., 1909-06-05
THAW'S. EFFORT VAIN
TO STAY. IN MATTE4W4N.
AppelIate DiUiSiOn SustdlnS DiSmiS-
sal of Habeas Corpus Writ.

Harry K Thaw failed in his latest attempt TO be
released from the Matteawa1 State Hospital for
the Criminal Insane yesterday when adverse
decision was handed down by the Appellate Dtvi-
sion Of the Supreme Court in Brooklyn in the mo-
ton made in his behalf for writ habeas corpus
The writ was dismissed fl October in the Supreme
Court of Westchester County. where IL was Sc
cured and Is the appeal from that dismissal
that the lower co-rt is sustained and the order
made for the continuance Of Mr.. Thaws stay at
Matteswan. The way is left clear in the decision
for his by proceedings in which he may es-
tabsh his sanity.
Justice Gaynor dissents from the decision OF his
four associates and holds that. inasnluch as the
commitment OF the prisoner to Matteawan by Jus
tice Dowling illegal the relator should be
discharged unless he he committed in I'VE DAYS un-
der the insanity law" While Justice jerks. who
wrote the prevailing opinion upholds the commit
raent of Mr Thsw by Justice Dowling under Sec
zion z54 Of the Penal Code. Justice Gaynor says
that it is unconstitutional because. in failing 70
provide for hearing on the sanity of the DEFEND
ant il tends to derive persons of life. liberty OF
property without due process Of law
'The commitment prescribed he asserts. is
final and permanent instead of only temporary for
the purpose hearing trial The prisoner was
not in the evil being tried at the same time
on the his present sanity before the judge
and OF his past sanity before the jury The pro
ceedings and safeguards prescribed by the INSANITY
law the only course open against the reatol
from the beginning
The prevailing opinion was supported by con
curing opinion written by Justice Rich and the ap-
proval Justices Hirschberg and Miller IN te
decision Justice jerks writes:
The -ront raised is that the statute whereby
Thaw was committed Is unconstitutional IN nat
Thaw was committed pursuant to provision con
tained that part Of the Code OF Criminal tIo-
cedure fSeotion 45zl which reads:
When The defence is insanity ot the de1eilCanI
on that ground state the fact with the VerulCL
The Court must. thereupon. II the defeIdahI pe
n custody and they deem his discharge da1iserotls
70 the public peace and safety, order nm 70 pe
committed the state luniltlc asylum uIl'4i Al0
The practical effect is that the Legislature has
rrescrihed that a successful defence Of INSANITY
shall not a. a matter of course be fohoWed py
an sbsalte discharge Of the defendant. but II may
he followed by his commitment until ne hecoHieS
sane We must infer that the Leslsla ture III IN
+anded that The Court would commit only alter
a. conclusion that at the time OF acquittal ne
resi- i1s conclusions upon the evidence gwen AT
the trial and The appearance OF the oeIe1l'lal' Il
n Scannot be said that defendant who makes
-he pea of insanity and seeks 70 establish II dld
nor have notice under this provision OF heaI
that might reveal his condition OF insanity al pIe
time Of his rgsal and hearing OF Whioh the It
sult might be such commitment upon aSeUi''Ni
<or insanity under provision No, 454 ,.
II cannot be said that the trial OF q deIenoant
intends that he IS for the reason Ilat an
insane man may he tried II he Is coInpeIIe5nt 70
understand the proceedings and 10 make ms ~
fence There can be punishment for him VINO
hah heen acquitted, but il is precautlon ior ul7
rrIblic which permits the restraint OF an IlIseiIo
RparsoD who al large would be a danger 70 the
Teace and safety Of the people The cohIIlltIueII
- iss+ only SO long the defendant is insane.
and he has the right ct any time under the law
70 have his sanity determined upon haoefS ''it'9