, which may be "sprung" suddenly upon him later at the trial, that
the defendant was irresponsible.

In order that this may be clearly understood by the reader he should
fully appreciate the distinction between (1) the claim on the part of an
accused that he is at present insane, and for that reason should not be
either tried or punished for his alleged offence, and (2) the defence
that he was (irrespective of his present mental condition) insane within
the legal definition of irresponsibility at the time he committed it. No
person who is incapable of understanding the nature of the proceedings
against him or of consulting with counsel and preparing his defence can
be placed on trial at all, or, if already on trial, can continue to be
tried, and if a defendant "appears to the court to be insane," the judge
may appoint a commission to examine him and report as to his present
condition. This may be done upon the application either of the State of
the accused through his counsel.

It was such a commission to determine the accused's present mental
condition that District Attorney Jerome, upon the basis of the evidence
introduced by the defence, applied for and secured during the first
trial of Harry K. Thaw. The commission reported that Thaw was sane
enough to be tried and the court then proceeded with the original case
for the purpose of allowing the jury to say whether he knew the nature
and quality of his act and that it was wrong when he shot and killed
White.

This was a totally distinct proceeding from the interposition of the
DEFENCE that the accused was irresponsible when he committed the crime
charged against him and was not inconsistent with it.

Now supposing that the Commission had reported that Thaw was insane at
the time of examination and not a fit subject for trial, but, on
the contrary, ought to be confined in an insane asylum, the District
Attorney would have spent some twenty odd thousand dollars and a year's
time of one or more of his assistants in fruitless preparation. Yet, as
the law stands on the books to-day in New York, there is no adequate
way for the prosecution to find out whether this enormous expenditure of
time or money is necessary or not, for it cannot compel the defendant
to submit either to a physical or mental examination. To do so has been
held to be a violation of his constitutional rights and equivalent to
compelling him to give evidence against himself.

Thus when Thaw came to t