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.
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