The Richmond Virginian. (Richmond, Va.) 1910-1920, 1915-04-18
NEW. YORK APPELLATE
COURT AGAINST THAW
Declares Him An "Unweicome Guest
and Sends Him Back to Mat
teawan Asylum for Insane.
HAS NO STANDING IN COURT
Refusal to Return Him to New Hamp-
shire After Acquittai On Conspiracy
Charge No Violation Of Good Faith
TO Anyone, Says Court

late Division OF the Supreme Court
affirmed unanimously yesterday the
order of Supreme Court Justice Page.
directing that Harry X. Thaw be re-
turned to Mattea wan. Thaw will un-
doubleday remain In the Tombs rcr
some weeks yet pending he appeal
to the Court OF Appeals from the
Appellate Division. and awaiting the
outcome OF his habeas corpus pro-
ceeding in which ne .sKs that a Jury
determine his sanity.
The prevailing opinion, written by
Justice Hotchkiss and concurred In by
Justices Mclaughlin, Clarke and
Scott, concludes with the following
concise statement of the court s
views:
The situation here is that he had
therefore Deen lawfully determined 10
be insane and when the motion was
made, his commitment upon such de-
termination was a valid outstanding
process commanding the very sheriff
now holding him in custody to convey
him to the hospital where he was to
be kept until discharged by due
course OF law. Such due course OF
law may be invoked ana pursued only
AS prescribed by law ano in no other
IttaUuGI. II ICCtScatits l0tlowS tHat
in retaking Thaw into his custody
pursuant to said commitment, the
sheriff was acting under due PROCESS
of law.
Manner of Return Not Pertinent.
The motives which have Influenced
those who procured Thaw's return to
the State have nothing to do with the
case, and he may be discharged from
custody only when by due process of
law he shall have been ascertained to
be sane, and the prior adjudication
Of insanity shall have been suppressed
ed. For these reasons the order ap-
pealed from is affirmed"
Justice Scott also wrote an opinion.
in which Justices Mclaughlin and
Clark coneurred. stating that he be-
lieved the appeal presented no oues-
ton for judicial cogniza nee. Justice
Scott said:
The appellant Ia in this State and
there is outstanding a perfectly valid
order for his restraint as q person
OF unsound mind. How he came back
here is none OF our concern. Even If
he had been kidnapped and brought
back in defiance OF law, he would
have no standing to insist that he be
returned TO the place from which he
came. But IL Is urged that in some
breach OF good faith on the part
Of the State OF New York to retain
him under commitment TO Mattea-
wan. when he was brought back TO
the State for the purpose of being
tried for crime Good faith ia
whom Not the appellant. because
he came back individually and was
subject 10 no promise or Involvement
Not to the State OF New Hampshire,
because IL was the duty of that Sta tie
to return him to answer for the crime
for which ne had been indicted. 1t liz
true that this duty is termed moral
one because there IL no machinery
known to the Law to enforce 1t. but it
IL none the less duty enjoined by
the Federal Consti 'ution.
New Hampshire But Did Duty.
In honoring the requisition OF the
Governor OF this state. therefore, the
Governor Of New Hampshire did no
more than perform a public duty en-
Joined on him by the law OF the land.
This state thereby assumed no I'M
piled obligation to return appellant
To New Hampshire when his trial
should have ended. and no express
obligation is suggested. And even II
there had been an express condition
attached TO his rendition II is doubt
full whether 1t would have had any
force OF validity,
1T may be that the State would be
well rid OF so troublesome a guest
and that In view Of his acquittal II is
10 be regretted that having once left
ii he was brought back hut that is
not matter for judicial considera
tion. All we have to consider is his
right to be discharged from the law
full, outstanding commitment to Mat
teawan, and IL seems TO me clear that
he had no such right Certainly II
we were to release him from the re-
straining effect OF the commitment we
have no power to compel his deporta :
ton. but must release hin. uncondi-
tionally, leaving 1t to him To de-
termine whether he will go or stay"
VIII Take An Appeal.
Counsel for Harry X, Thaw an
to the Court OF Appeals without delay
from the decision OF the appellate di-
vision OF the Supreme Curt, which
upheld Justice Pages ruling that their
client must be returned to Matteawan
Asylum for the Criminal Insane under
the original order of Justice Bowling.
made on February /. 1908.
john Hanley. warden of the Tom bs.
has been notified by Presiding Justice
Ingraham. OF the appellate division.
to hold Thaw until Wednesday. pend
ing further orders. On Monday
Thaws attorneys will argue their APP
plication for writ of habeas corpus
before Justice Hendricks
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