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iMMA r i 1 I c u n & i '.i'.'i-.!'; u 4 1 2 '3f .VV'i I tie LAW IN THE THAV CASH REVIEW BY NOTED AUTHORITY Mr. William L. Clark Declare That the " Unwritten" or "Higher" Law Has no Place .In the Law of New York If That be the Foundation IJp onWIUch This Case Renta the Rem edy Lies -With Executive Clemency The Degrees of Morder Tbe De fense of Inutility and "Irresistible Impulse" The Latter Plea. Ac cording to High Antboritles Has no Place in the New York Law Au tliorittes Cited. Special to The Observer. New "York, Jan. 81. In view of the Importance of the trial of Har ry K. Thaw r for the killing- of Stan ford White and the great lntereit It excites, not only locally out through out, the country, and' even abroad, a taiemerlt of the law by which the jtullt or Innocence of the accused must' be determined -will be of Inter est not only to lawyers who make no pedal study of the criminal law, but to laymen as well A statement of tbe law on the subject has been pro cured from Mr. William L. Clark, re viewing editor of the Cyclopedia of Law and Procedure, known and cited as eye. and the author of well-known works on the criminal law. For the - benefit of those who may- be Inter ested In the case and wish to follow the testimony as it is published from , day to day here hi his statement He says: "It would be both Improper and : unfair to the defendant to express any opinion as to Ills guilt at .this time. 'Whether he is guilty or Inno cent must be determined, not on the facts which have been published in the newspaper, but on the faots as ' they appear from the evidence which' may be given at the trial, and the question will be decided by the Jury on this evidence under .the court's Instruction as to the law. They can not convict unless they are convinced of the defendant's erullt beyond a Y ' reasonable ' doubt, and a reasonable V, , doubt as to, his sanity at the, time of - the killing will require an acquittal. "V ' "With respect to the law there can be .little question. In the first place .1 - ' At is perfectly clear' that the so-called wfa wwritten or 'higher law, In the O sense In which the terms have been . used In connection wJth this case, has i - . no place In the law or New York. j ," .. The Innocence or guilt of one who -vy kills another depends entirely upon V", '4 the application" to the faots of the J ' 't law established by the statute and " ' Judicial decisions of the State, 1 Of ' -X; course ft la possible for ev Jury to -disregard the law as laid down for ' their guidance In the charge of .the l." , court, and this la all there Is to the - Idea ; .Involved J.. in ' this '1 use . ',v of ; tne -term 'unwritten ilswy i but in X this Stat Jurors are '. V ivnot ths Judges of the law.-but of the ' ivsct only, and under their oaths they re required to decide according to V' tbe law as given, them by the court, j i N. Y. Code Crtm. Proc. Hi. , Jf tbe V;-' 'law Is harsh as applied to the facts vs .V' Tt t ny particular case, then the rem- . tedy Is by application forexecutive f- clemency. . People vs. SUvertBtn, 111 -;t;i JN. Y. iH.i-,-si .j .-.;..,,;..' f- "indeoendemiy or statutory ttrovls- r 0 'irtns. If a sane man Intentionally kills , another, he Is frailty of murder, on . l'as thVclrcuthMsnees sre rroven to have, feeeo., such a to Justify or ex We.registeri were ever registered by any other satne number of Our ''Sanitarium IrfiVie off the wire ahead and make the necessary arrangements, but do not come without notifying us , Wire us or telephone Long Distance Phone No 1 84 iie Only Tirce-Pay liquor Cu on Earth- Dr B WiUiams, f or 1 1 years resident physican of the Keeley Institute, Greensboro, is now associated with Dt McKanna Elegant Sanitarium, rooms with baths, cuse his act, or to reduce U, by rea son of provocation, to manslaughter; and if a person Intentionally tires a pistol at another, an intention to kill Is presumed. As It Is concisely said In the Cyclopedia of Law and Proce dure, malice is Implied in every In tentional and premeditated homicide, If there are no circumstances serv ing to mitigate, excuse, or Justify the act 21 Cyc. 708. 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, If It was committed either 1) from a deliber ate, and premeditated design to kill, or (2) by an act Imminently danger ous Tto others, and evincing a deprav ed mind, regardless of humanjife, al though without a premeditated de sign to effect the death of any indi vidual. N. Y. Penal Code, 18S. The killing was murder in the second de gree if it was committed with a de sign to effect death, but -without de liberation or premeditation. N. Y. Penal Code, I' 184. While ft Is neces sary to murder In the first degree, under the statute, that there shall be both deliberation and premeditation, In addition to the intent to kill, all that the law requires is that the kill ing shall not be the Instant result of impulse, and It tm sufficient If there is some thought and reflection on the act, and a choice. and determination as the result of such mental action. People vs. Hawkins, 101 N. Y. 408; People vs. Barberl. 14 N. Y. 26; 21 Cyc. 72. "Under the supposed facts and cir cumstances of the killing it . seems clear that, there can be no question as to manslaughter. At common law, a homicide Is not morder, but man slaughter only, although intentionally committed, If it Is committed in the heart of passion caused by adequate provocation; but . passion, however great, is not sufficient to reduce the killing to manslaughter, If the provo cation is not In Its nature adequate hi the eye Of the law, or If there has been time after the provocation was given for the passion of a reasonable man to cool, whether It does in fact cool or not, since the safety of the community requires that persons shall ; reasonably control their pas slons, And, although there has been some tendency to leave the question In such cases to the Jury, the law has long been settled that mere suspicion, or even actual knowledge, on the part of aJiusband f past or, even contln Blrig ilUaHTi-elatlons between nts-lfs and' another man Is not such provo cation a -will reduce his -Killing of the man. from murder1 -to manslaugh ter;' 21 Cyci476i-'5l. Asfortlorl, suspicion,, or even knowledge, on the part of . the man that' hie wife Is be ing pursued or Annoyed by 'another would -not . be sucn provocation- as to reducea homicide to , manslaughter. Furthermore, under the '.present atat ute In New York, a homicide cannot be ' classed . as. maslaughtr, except when there was. ho I design to ..effect death; "when" that purpose is 1 present the crjrhe la murder In one of Its de grees, unless It- la; excusable or Justl fleblo. N. Y, Penal Code, ( 111, ISt, lit; People vs. Beckwlth, 10$ K Y. MeV4;-.i vv,.-f- .;. ;'- "Nor was' (he homicide excusable or Justifiable either at common law or under the New York statute, for, to be excusable, ; It must have been committed , by accident In doing a lawful act, and to be Justifiable, : It munt have been In the lawful defense of Thaw or his wife, when tHsre was nreaionable ground to apprehend ' a elrn on the part nf the person slain te commit jt felony, or t do some 1907; seventeen more patients than days crowded conditions iree-Jray Reidsville, N. C. Phone 184. steam heat, trained attendants, resident physician; in fact, everything found in the great personal injury, etc., and when there was 'imml'nent danger of such design being accomplished.' N. Y. Pen. Code, l 208. 205. See 21 Cyc. 794. 812. 826. ( , THE INSANITY DEFENSE. "With respect to the defense of in sanity, if Thaw was Insane when he killed White, he not only cannot be punished, but he was guilty of no crime, and this Is true although he may have been' sane before he com mitted the act and may be sane now. 12 Cyc. 165; 21 Cyc. 663. Whether or not he was Insane ie of course a question" of fact which must be de termined by the Jury from the evi dence; but there are certain tests es tablished by law in this State, as else where, for determination of the question whether, If he was to some extent insane, his Insanity was suffi cient to exempt him from responsi bility. 'In the first place It is everywhere the settled law, In New York by ex press statutory provision, that If Thaw, at the 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. N. Y. Pen. Code, I I tO, 21, II Cyc. 166; 21 Cys. 668. In the second place. It is equally well settled that mere moral or emotional Insanity, or frensy produced by an ger, Jealousy, or other like passion, is not such Insanity as will exempt from responsibility, where the person knew the nature and quality of hie act, and that It was wrong; and this is true, it has been held, although he may be unable to .control hh passion, and even though some mental defect makes him more liable to yield to passion than If he were mentally sound. 12 Cyc. 170; 21 Cyc. 661. Proof of such a condition, however, by excluding the elements of delib eration and premeditation. If the ev idence shows that It did so, but not otherwise, will reduce the homicide to murder In the second degree. Peo ple vs. Barberl, 149 N. Y, 156; 21 Cyc. 132. ' , "Perhaps there may be such a thing as genuine insanity produced by anger, Jealousy or revenge, and if there Is, which Is a question of fact to be determined, from the evidence, then It Is a defense to the same ex tent as) insanity produced . by any other cause; but It must, be genuine insanity as distinguished from tur bulence of passion produced by a de sire for resenge' (People vs. Foy, 111 N. Y. 666, 667). and It must, as is expressly required by section 21 of the Penal Code, have been such as to render the accused Incapable of knowing the nature and quality of his act or of knowing , that It was wrong. The heat of passion and feel ing produced by motives Of anger, hatred, or revenge Is not Insanity and affords no gronnd of exemption from responsibility. People vs. Foy, 131 N. Y, 666, 647. ' . ' . - A GROUND OF EXEMPTION. . ' . "In some states a phase of Insan ity known as insane irresistible Im pulse, - resulting from ' mental defect or disease. Is recognised as a ground of exemption from responsibility for a crime commuted under influ ence; it being held in these State that If an Insane Impulse so over masters the will of a person as to irresistibly impel him to the com mission of a homlcMe, he Is not re sponsible , although he may know the nature and quality of his act and may know that it la wrong. 1! Cyo. lllrtl Cyc. f)68. In other States, however, this doctrjne Is not recog nised, and It has ne place In the law, Liquor Cure establishment in North Carolina in the Is Now Full to Overflowing we ask all our ?.S. of New York. In thta State U Is ex pressly provided by statute that" a person is not excused from criminal liability as an Insane person 'except upon proof that, at the time of com mitting the alleged criminal act, he was 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 fur.ther, that 'a morbid propensity to commit prohi bited acts, existing in" the mind of a Serson who Is not shown to have een Incapable of knowing the wrongfulness of such acts, forms no defense to a prosecution therefor. N. Y. Penal Code. 21, 23; and see 12 Cyc. 169; 21 t'yc. 664. "In the Carpenter case (102 N. V. 238), where the defendant had killed his wife by repeatedly stabbing her with a knife. Jn the presence of a number of people, in the open street, and In broad daylight, the Court of Appeals held that the trial court did not err In refusing the defendant's request to charge the Jury that 'if some controlling disease was In truth the acting power withm ; him (the prisoner) which he could not resist, or If he had not sufficient use of hi reason to control . the passion which prompted the act, he "wasnot responsible. Chief Justice RUgr, writing the opinion of the court, said that 'the principle of this request Is not only Impliedly condemned by sec tions 21. and 23 of the Penal Code, but has been held to be untenable by the express decision of thks court,' cit ing the Flanagan case, 62 N.' Y. 465, and quoting the following language of Judge Andrews therein, namely: 'Indulgence In evil passions weakens the restraining power of the will and conscience, and the rule suggested mould be the cover for the commis sion of crime and Its Justification. The doctrine that a criminal act may be excused upon the notion ' of an Ir resistible impulse to commit It, when the offender has the ability to discov er his legal and moral duty m respect to. It, has no place in the law.' -. "Thla view has been adhered to in the later cases, as in People vs. Fer rer 0, 111 N. T. 165, 177; and People vs. Silverman, 111 N. Y.' 185. In the latter case a conviction of murder in the first degree was sustained, al though the evidence showed that the defendant had been eccentric, mon, rose, and of bad temper, and had been treated In a sanitarium a little more than a year before the homi cide, 'and although some physicians testified that he was Insane, The court. In an opinion by Judge Cul len, held that whatever may be the opinions of medical experts as to the Insanity of a peteofc. charged with crime, but one test of responsibility Is known to -the law,- namely, that found In I 21 of the Penal Code, above quoted, which 1 but a 'statu tory declaration of the law t it had long prevailed, and that when the ev idence affords no reason for doubt that the defendant knew both the nature and quality of ths act don by him and that the act was, wrong, he Is Justly held by the Jury to be responsible 'for his crime, whatever may have been hi eccentricity of conduct, or whatever abnormal his disposition. ' ": ' ' i: v ' : v , "The learned judg suggested that while ths defendant'! "previous mala dy and Infirmities of temper, were In sufficient to 'affect his legal responsi bility, the' might warrant a mitiga tion of tils punishment and his relief from . suffering the supreme penalty of the law,.'':; ..r'vi.'- f;.-W"-'. Note. J. used In place . of , section 'mark. '- : . t . ..-; ,'.- . , - j, prospecting patients to write or Liquor Cure Company THE LESSON FOR SUNDAY NOAH, THE ARK AND THE FLOOD No Bolder or Moro Tragic Picture in all the Scripture Than This The Hood a Great Mercy and an Ob ject Letn Which the World Has Never Forgotten 11 Resplen dent Faith of Noah The Preser vation of (he Good Seed Analy sis and Key and the Teacher's Lan tern. First Quarter. Lesson 8, 1-16. Genesis (Copyright, Davis W. ("lurk.) l the Incomparable ploture gal fry of the Scriptures there Ih no can vas like that which presents the ark and tine flood! It is too bold and trag ic to be passed. It arrests and stirs the most indolent mind. Once caught upon the sensitive plate of a dhlld'a memory It will never fade. Its un speakable horror Is mercifully miti gated by such gentle Incidents a the door shut by God's own hand, the dove with olive branch, and the rain bow spanning all. The Noachlan deluge only precip itated the inevitable. It was an act of divine mercy as woll as Justice. In the great conflict foretold In Eden between the serpent seed and the seed of Qod the former were ascend hnt. The conditions were aggravated by Intermarriage. The sons of Ood, the descendants of Heth, were lured by the lren daughters of Cain, so that they chose their wives Irrespec tive of the divine will. All the pro verbial sin, and sorrow of misalliance followed. The very physical hardi hood ot the offspring made their moral obliquity more deadly. Every conceivable lust was rampant. The seed of Qod was reduced to a paltry contingent. It was on the verge of extinction. The whole race, In fact, was committing suicide. It was de stroying Itself. Earth would have soon been like a desolate island whose sanguinary population had consumed Itself through lust, mur der and cannibalism. The flood was a great mercy.' It shortened the Irretrievable misery of' the race then living. It kept the seed alive. It was an object lesson the world has never forgotten. ' God's election to salvation is baaed upon the moral qualities of those whom He jchooses. There is striking Illustration of this In he character of Noah. He found grace In the sight of the Lord, not through ca price and favortism, but because In a wicked and adulterous generation he shone like a light, and lovingly held forth to a dying race the word which, if. received, would have proved life to them. He was a Just man and upright, and walked with Ood. He was flt to be the second Adam, the progenitor of a new, and hopeful race, And o this end Ood pared him. Noah', race shines resplendent upon the ' raylcsa Irrellglon of his day. He showed hi faith by hla stu pendous wdrk. On dry land and far from . the sea he bul)fhla colossal ship.;, Ha preached rlghtsousnts to the gaping and gibing crowd which curiosity brought from afar to : his shipyard. , Hf . was persistent ' vH kept tight on building and preaching for one hundred and twenty years. H ' built precisely according to the model shown him. He gather! in the supply of food for man and beast requisite for hi long voyage. He s- lected and admitted the beast and fowl a God directed. ' With seven soul he utrd b.1 ftrang prlsen. best sanitariums in the United States. had its door shut to behind him by the Invisible Hand, and tarried In his weird environment undaunted, though seven days passed before the first rain drop pattered upon the roof.' Sublime faith, that! The "log-book" of that unparalleled voyage Is very brief. It takes only twenty-seven verses to narrate the novel and thrilling experience of throe hundred and sixty-five days. Much riches are in little room. Im agination must be trusted to uncover them. As Noah at length emerged from the ark, an Inexpressibly sad and or phaned feeling must have affected his generous heart. Earth's desola tion, how utter! In vain he listens for the sound of a human footfall. Not oven a footprint is left. He finds relief In worship. He builds an altar on the dripping rocks of Ararat. Again his faith exemplifies Itself. He has saved only a few specimens of clean animals; but he prepared to offer some of them, with the full as surance that God would supply their places, and see that the species did not become extinct. When the frag rance of that whole burnt offering came up before the Lord, He knew that Noah Intended It should signify the complete devotion of himself, his descendants, and the renewed earth to God. As a pitying Father, God responded to the suppliant patriarch, allaying his fears with the assurance that the cataclysm Just passed should never be repeated; the beneflclent regularity of the seasons should know no inter ruption; human life should have a safeguard. God delegates Hia Judicial power to man to this end. The first principle of human government Is here Irradiated In the statute, "Whoso sheddeth man's blood, by man shall his blood he. shed." The Noachlan covenant was now ready for its seal.. Ood took the very substance which had destroyed the earth, and transmuted It into a royal signet to attest His promise never again to whelm the race. There It stood in all the danllng alpendor of Its prlsmatlo color an arrowlosa bow, bent toward heaven, the very vastness of Its sweep signifying the "wldenesa of Ood' mercy." To all fenerations the ineffable and assuring words which first fell upon Noah' ears have psounded, "This Is " the token of the covenant." ANALYSIS AND KEY. 1. The flood; bold and, traglo picture. 3. Mercy as well aa Justice of It Race exterminating Itself through ' " sin. - " -, 1 Flood save the ssed of Ood. ' t. Ground of Noah' election to life, HI moral qualities. . . 4. HI resplendent faith. , . Preparations for the flood. I. The log-book of the Ark. . ' , -' 6. Noah's sacrifice: Ood' promise. 7. The token of the Covenant ; ; THE TEACHER'S LANTERN., Rivet fidgety scholar this X para- fraph certainly. will; it Is so scenic, t fairly teaches Itself. : The natural method la to describe the condition of the race before the flood; the su perlative wickedness which made that wholesale destruction an act of mercy aa well as of .Justice;- how the Irretrievable misery of ; the : hu man family,-which ; had doom ed itself, wa out short, and a chance to begin anew ' tonder happier auspices..- vy-v. -.v.u-- w1-.; v v ; . ... V Noah' upright character can' be made to shine against the universal degeneracy of M times. - It proves; one can bs good in spit ot ens' en, vlronment A boy can keep his lip ' , unsullied, though the air around him " " Is blue with profanity. He need not He, nor cheat, nor gamble, though -those with whom he is thrown In school, shop, or store all do. If he . keeps upright, he will prove God's In- ' strument of good to his fellow. , ; ' ' Implicit and persistent was Noah' ; obedience. Ho showed his faith by -his works. He never grew weary in woll-dolng under circumstances cal culated to try him to the uttermost. 1 So his name richly deserves to be . engraven on that tall obelisk, Hebrew ' xl. reared to the heroes of faith. HI , very character and counts wa in It self an Indictment and condemnation "f " of the world before the flood. v v Heir to two worlds, Noah stepped - -out of the ark sole monarch and pro- . prletor of all he surveyed with the ' natural eye, and beyond that the ' better inheritance, even the heavenly, v So Ood rewards a hundred-fold in this life, and In the world to coma -' lite everlasting. , wr, - v A bon ot contention ha ever - been the question whether the flood ' was universal or not The argument .' pro: (1) Natural conclusion from language of Scripture. (2) No evi dence to prove that he population of -earth was confined to a limited -locality. (I) Impossibility of piling '' ; the waters up In such manlier aa to cover mountains. (4) No need to take birds Into the ark. If deluge was only local. Argument contra: (1) Universal deluge unnecessary to" ac- ' compllsh the end designed. (2) Ark could not have given room for every . species. . (3) To cover highest mountains, water must need be five miles deep. Ten miles added to the diameter of earth would destroy the equipoise of the' system. (4) Uni versal prevalence would have pro duced change of climate. (5) Over flowing of salt water would destroy plant life, and frssh water animal ; ' life. y e ; e " ; - '. r ' ' Still pending la the case, with the . drift ot the best modern comment ' however decidedly In favor of a local . deluge. The rock bear the , Incon trovertible testimony to the possibility . and reality of such a flood a Genesis 4 describes Huxley,' la- hi Lay ,, 6r- , . ; mon. No, IX, graphically describe such a cataclysm. M. Flguler affirms ' that he Asiatic deluge occurred after , : the appearance ot man. A vulgar In fidelity hi had It laugh at Noah and -hla ark: but he laugh , best who laugh lat v v'.V. '."::''';..:'.".:." ': Corresponding to the testimony of the rocks I the testimony of tradition. -Humboldt say that ancient traditions of the flood are dispersed over the whole .surface of the globe. , New Monroe Cotton Mill 8000 to Be- '':. gtn Operation. 'vV 2 . Special to The Observer, " Monroe, Jan. It The new cotton mill company, which has taken ov-t-to Crow Knitting Mill property. h;i been organised and expect to havo the new cotton mill started within months. The Plant will be know n as the Everett Mills, and the c pany has 1 an authorised caplMl ' 1100.000. V ' The officers are: Charles loo: president nd genral manairor; 8. Lee, vice president, and J. I Everett. ecretary and treasurer. . .. j All hesdncns ro VK When you row i 'f . A 4 ,1 ... wl.i-r I - ' ' ' ' I V'ls l lr,V 1:ti, Wy'i lhaimacr. .'tn - v- n
The Charlotte Observer (Charlotte, N.C.)
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Feb. 1, 1907, edition 1
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