Show IN the T CASE in view of the importance of the trial of harry K thaw for the killing of stanford white and the great interest it excites throughout the country and even abroad a statement 0 the law by which the guilt or in inocence of the accused must be determined ter mined will be of interest not only to lawyers who make no special study of the criminal law but to laymen as well A statement of the law on the subject has been procured from mr L alak reviewing editor of the cyclopedia dla of law and procedure and tho author of well known works on tho criminal law for the benefit vt our readers who may be inter estol in the case and wish to follow the testimony as it la published from day to daj wo here reproduce hla statement he says it would be both improper and unfair to the defendant to express any opinion as to bis guilt at this time whether he Is guilty or innocent must be determined not on tho facts which jiahe been published in the newspapers but on the facts as they appear from the evidence which may e given at th trial and the question will be decided by the jury on tills evidence under the courts instructions as to the law they cannot convict unless they are convinced of the defendants guilt beyond a reasonable doubt and a reasonable doubt as to his sanity at the time of the killing will require an acquittal quit tal with respect to the law there can be little question in the farst place it is perfectly clear that the so called unwritten or higher law in the sense in which the terras have been used in connection wah this case has no place in the law of new york the innocence or guilt of one who kills another depends entirely upon the eppli catlon to the tact of the law established by the statute and judicial decisions of he state of course it ii i i poet ble for a jury to disregard the law sus laid down for their guidance in the charge of the court and this i all there Is to the idea involved lo 10 this nee of the term but in this state aurora are not the of the but of the facts only and under their oaths they are required to decide according to tho law as given them by the court if the jaw h harsh as to the facts of any particular cabe then the remedy Is by application for executive independently of statutory provision it a sane man intentionally kills another he Is guilty of murder un ices the circumstances are proven to been such as to justify or excuse his act or to reduce it by reason of to manslaughter and it a person intentionally fires a pistol at another an intention to kill Is As it Is concisely said in the cyclopedia dla of law and procedure malice is implied in every intentional and premeditated homicide it there are no circumstances serving t mitigate excuse or justify the act under the new york statute assuming that thaw was sane his killing of white was murder in the first degree unless it was justifiable or excusable cu sable if it was committed either 1 from a deliberate and premeditated design to kill or 2 by an act imminently dangerous to others and evincing a depraved mind regardless of human afe although without a premeditated design to effect the death of any individual the killing was murdering mur derin the second degree it it was committed with a design to effect death but without deliberation or premeditation while it la necessary to murder aln the first degree under the statute that there shall be both deliberation an premeditation in adal alon to the intent to kill all that the law requires s that the killing shall not be the instant result of impulse and it is sufficient if there is some thought ind reflection on the act and determination as the result of mental action under the supposed facts and circumstances cum stances of the killing it seems clear that there can be no question as to manslaughter at common law a if it is committed in the libat of passion caused by adequate provocation bu t passion however great is hot sufficient to reduce the killing manslaughter if the brov d cation in its nature adequate in the eye ut the law or it there has been time after the provocation was I 1 given for the passion of a reasonable man to cool whether it does in fact cool or not ince tha safety of the community requires tant persons shall reasonably control their passions and although there haa been somo cy to beave the quey in euch case to the jury the law has long been settled that mere suspicion or ovea actual knowledge on the part of a husband of pastor even continuing illicit relations his wife and anoche mantis not acl provocation as will reduce his of the man from murder to manslaughter A fortiori fort lori suspicion or even knowledge on the part of a roan that ats wife Is being purr sued or annoyed by another would not be kiich provocation as to reduce homicide to man slaughter furthermore under the present statute in new york a homicide cannot be class ed as manslaughter except when there was no design to effect death when that purpose is present the crime ia murder in one of its degrees unless it is excusable or justifiable nor was the homicide excusable or justifiable either at common law or under the new york statute for to ba excusable it must have been committed by an accident in doing a lawful act and to b justifiable it must have been in the lawful defense or thaw or bis there was reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some breaz personal injury etc and when them was imminent danger of such design being accomplished with respect to the defense of insanity if thaw was irenne when he killed white ho not only cannot tie punished but he wag guilty of no crime and athla is true although he may have been sane before he committed theace and may bo sane now whether ho was insane Is 0 course a question of fact which be determined by law in new york state as determination of the question whether if he was to ome extent insane his insanity was sufficient to exempt him from responsibility lity in the first place it is everywhere the settled law in new york by express statutory provision that it thaw at tho time he killed white was so insane that he did not know the nature and quality of his act or that he did not know the act was wrong he Is not responsible and must be acquitted in the second alacci it Is equally well settled that mere moral or emotional insanity or frenzy produced by anger jealousy or other like passion Is not such insanity as hlll exempt from responsibility the person knew the nature and quality of his act and that it was wrong and this is true it has been held although he may be unable to control his passion and even though some mental defect makes him more liable to yield to passion than if he were mentally sound proof of such a condition however by excluding the elements of deliberation and premeditation it the evidence shows that it did so but not other wise will reduce the homicide to murder in the second degree perhaps there may be such thing as genuine insanity produced by anger jealousy or revenge and if there is which Is a question of fact to be determined broo the evidence then it la a defense to the same extent as insanity produced by any other cause but it must be genuine insanity as distinguished from turbulence of passion produced by a desire for revenge and it must as Is expressly required by section 21 of the penal code have been such as to render the accused in capable of knowing the nature and quality of his act or of knowing that it waa wrong the heat of passion and feeling produced by motives of an ger hatred or revenge Is not insanity and affords no ground of exemption from responsibility in some states a phase of insanity known as insane irresistible impulse resulting from mental defect or disease is recognized as a ground of exemption from responsibility for a crime committed under its influence it being held in these states that if an insane impulse so overmasters over masters the will of a person as to irresistibly impel him to the commission of a homicide he Is not responsible although he may know the nature and quality of biff act and may know that it is wrong in other states however this doctrine is not recognized and it has no place in the law of new york jn new york abate it Is expressly provided by statute that a gereon Is not excused from criminal liability ns an insane person except upon proof that at the time of committing the alleged criminal act he yas laboring under such a defect of reason as either 1 not to know the nature and quality of the act he was doing or 2 not to know that the act was wrong and further that a morbid propensity to commit prohibited acts existing in the mind 0 a person who Is not shown to have been incapable of knowing the wrongfulness of such acts form no defense to a prosecution in the carpenter case N Y where the defendant had killed his wife by repeatedly stabbing her ath a knife in the presence of a number of people in th open street and in broad daylight tho court of appeals held that the trial court did not err in refusing the defendants request to charge the jury that if some controlling disease was in truth the acting power within him the pals oner ho could not resist or if he hal not sufficient use of his reason to control the passion which prompted alie act he was not responsible chief justice bugor writing tho opinion of the court said that the principle of this request Is not only impliedly condemned by sections 21 and 23 of the penal code but has been held to be untenable by the express decision of court the flanagan case 52 N CY and quoting the following language of judge andrews therein namely indulgence dul gence in evil passions weakens the restraining power of the will and con science and the rule suggested would be the cover for the compassion of calmo and Us justification the doctrine that a criminal act may be exi aused apon the notion of an irresistible impulse to commit it when tho offender has the ability to discover hla legal and moral duty in respect to it has no place in the law 1 this alow has been adhered to in the later cases as in people v for and people v silverman in the latter case a conviction of murder in the arst degree wag sustained although the evidence showed that tho defendant had been eccentric morose and of bad temper and had been treat ed in a sanitarium a little cuore than a year before the homicide and although some physicians testified that ho was insane the court in an opinion by judge cullen held that whatever may he the opinions of medical experts as to the insanity ofa of a person charged with crime but one test of responsibility Is known to the law namely that found in the penal code quoted which Is but a statutory declaration la of the law as it had long prevailed and that when the evidence affords no reason for doubt that the defendant knew both the nature and quality of the act done by him and that the act was wrong ho is justly held by tho jury to be responsible foible crimo whatever may have been his eccentricity of conduct or however abnormal his disposition the learned judge suggested that while the defendants previous malady and infirmities of temper were insufficient to affect his legal responsibility they might warrant a mitigation of his punishment and his relief from suffering the supreme penalty of the law |