State v. Allan, 53060

Citation166 N.W.2d 752
Decision Date08 April 1969
Docket NumberNo. 53060,53060
PartiesSTATE of Iowa, Appellee, v. William ALLAN, Appellant.
CourtUnited States State Supreme Court of Iowa

D. W. Harris, Bloomfield, for appellant.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Samuel O. Erhardt, County Atty., for appellee.

GARFIELD, Chief Justice.

Defendant Allan, who was acquitted on the ground of insanity of the crime of assault with intent to murder in violation of section 690.6 Code 1966, has appealed from an order of the district court, pursuant to Code section 785.19, finding his discharge would be dangerous to the public peace and safety and committing him to the State Mental Health Institute at Mt. Pleasant until such time as its superintendent determines defendant is no longer so dangerous and is sane.

Section 785.19 at all times pertinent here provided: 'Acquittal on ground of insanity--commitment. If the defense is insanity of the defendant, the jury must be instructed, if it acquits him on that ground, to state that fact in its verdict. The court may thereupon, if the defendant is in custody, and his discharge is found to be dangerous to the public peace and safety, order him committed to the insane hospital, or retained in custody, until he becomes sane.'

It is not questioned that defense to the criminal charge was insanity, the jury was instructed as the statute directs and its verdict stated acquittal was on the ground of insanity.

The verdict of acquittal was returned January 31, 1968. On February 2 the county attorney applied to the court for a hearing under 785.19 as to whether defendant's discharge would be dangerous to the public peace and safety and he should be committed to 'the insane hospital,' to use the statutory language. The application was granted, the hearing held February 15 and the order appealed from was made February 23.

Essentially four errors are assigned. (1) Section 785.19 is not applicable here because defendant was not 'in custody' of the sheriff but was on bail when the verdict of acquittal was returned. (2) The finding defendant is dangerous to the public peace and safety is not supported by the evidence but is contrary thereto. (3) The order is illegal in committing defendant to the Mt. Pleasant institution until he is found 'sane.' (4) Section 785.19 and the court order violate Article I, sections 9 and 10 Iowa Constitution by depriving defendant of a jury trial.

We affirm the order.

I. The state moved to dismiss the appeal on the ground no appeal lies from the order of February 23 since it is not 'the final judgment' within the meaning of Code section 793.2 which provides 'An appeal can only be taken from the final judgment * * *.' The motion was ordered submitted with the appeal and should be first considered. As affirmance of the order indicates, we hold the motion should be overruled.

Hansen v. Haugh, 260 Iowa 236, 149 N.W.2d 169, involves an order pursuant to section 785.19 which for present purposes was the same as the one here. Although the commitment there was to the 'Security Hospital' within the outer walls of the men's reformatory, we held it was to 'the insane hospital' within the meaning of 785.19. Both the trial court and this court also held Hansen's commitment was a civil commitment, not a criminal one, of a mentally ill person, and in no sense by way of punishment for any act done but to protect the public and defendant and provide treatment of his unfortunate malady. The Hansen opinion also points out enactment of 785.19 and a court order thereunder are an exercise of the state's police power. See also 44 C.J.S. Insane Persons § 131 a, page 288.

Section 793.2 is in the Code chapter which refers to appeals in a criminal case. We may assume, as the state contends, the order appealed from is not the final judgment or sentence in a criminal case within the meaning of 793.2. If it is not and if, as Hansen v. Haugh supra holds, the order is a civil commitment in the exercise of the state's police power, it is a final judgment or decision for the purpose of appeal within the meaning of rule 331 Rules of Civil Procedure.

Both the Supreme Court of the United States and this court have held that in both civil and criminal cases the judgment is final for purposes of appeal when it terminates the litigation between the parties on the merits and leaves nothing to be done but to enforce by execution what has been determined. State v. Klinger, 259 Iowa 381, 383, 144 N.W.2d 150, 151, and citations. This order (the vital part of which is designated 'Judgment Entry') falls within the above language. See also Morgan v. State, 179 Ind. 300, 101 N.E. 6, 9-10.

II. Considering now the assigned errors set out supra section 785.19 states the order of commitment may be made if 'the defendant is in custody, and his discharge is found to be dangerous to the public peace and safety, * * *.' It is true, as defendant asserts, he was not in actual physical custody of the sheriff but was on bail, to which he had been admitted prior to the trial, when the verdict of acquittal was returned. However, we think the statute does not require more than the constructive custody of one admitted to bail. Ample authority supports this view.

8 Am.Jur.2d Bail and Recognizance, section 4, contains this: 'The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the state of the burden of keeping him, pending the trial, and at the same time to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. * * *

'An accused person released on bail is not only in the custody of bail, but he is also in custody of the law; the accused is deemed to be as much under the power of the court as if he were in custody of the proper officer.'

And id., section 94, page 837 states: 'Although a defendant in a criminal action is not in custody in the sense of being under physical restraint when released on bail bond, he is still, constructively, in the custody of the law as a continuance of the original imprisonment.'

8 C.J.S. Bail § 31, page 60 (1962 Vol.), contains this: 'One enlarged on bail is, however, also considered as being in the custody of the law and the bail does not divest the court of its inherent power to deal with the person of the accused.' A footnote cites several precedents from different jurisdictions to support the quoted text and the proposition that the principal under bail bond or recognizance 'is still, constructively, in custody of the law, * * *.'

Decisions which support the views above expressed and our holding on defendant's first assigned error include Brewer v. Municipal Court, etc., Cal.App., 193 Cal.App.2d 510, 14 Cal.Rptr. 391, 395; State v. Bates, 140 Conn. 326, 99 A.2d 133, 134-135; Matera v. Buchanan, Fla.App., 192 So.2d 18, 20; In re Lexington Surety & Indemnity Co., 272 N.Y. 210, 5 N.E.2d 204 and citations; Lemme v. Langlois, R.I., 244 A.2d 271, 273; State v. Olson, S.Dak., 152 N.W.2d 176, 177-178. See also Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371, 21 L.Ed. 287, 290.

Lemme v. Langlois, supra, says of an accused admitted to bail, 'The great weight of authority * * * supports the view that such person is in custody of the bail and, constructively at least, in the custody of the law.'

No sufficient reason is suggested or occurs to us why section 785.19 or a court order thereunder should not apply, other requisite conditions being shown, to one acquitted on the ground of insanity who is in constructive--as well as to one in actual physical--custody. Indeed it would seem there is greater need for application of the statute and an order thereunder where accused is merely in constructive custody of the law.

Defendant cites Allen v. United States, 1 Cir., N.H., 349 F.2d 362, and United States v. Harris, S.D.Cal., 155 F.Supp. 17, for the point the court has no authority to proceed under 785.19 'where defendant is out on bond and not in custody.' We do not consider either case contrary to our holding on this assigned error.

Allen, while at large on bail pending commencement of service of a federal sentence, proceeded under U.S.C., section 2255, to obtain post conviction relief somewhat similar to that by habeas corpus, which is available to one 'in custody' under sentence. Relief was denied on the ground service of the sentence had not commenced and he was not in custody thereunder. It is sufficient to say United States v. Harris, supra, is a somewhat similar decision.

III. Defendant combines in one division of his brief and argument four assigned errors all challenging sufficiency of the evidence at the hearing on February 15 to support the finding his discharge would be dangerous to the public peace and safety. We follow the same plan in this division hereof.

At the hearing the entire file in the criminal case was received in evidence without objection on the state's offer. The state then rested, evidently relying on a claimed presumption that a condition of insanity once established is presumed to continue until the contrary is shown. The file has been certified to us.

Defendant then offered testimony of two psychiatrists, Dr. Lara of the State Psychopathic Hospital at Iowa City, and Dr. Paul Cash of Des Moines. Both expressed the opinion on direct examination defendant was not on that day dangerous to the public peace and safety. Dr. Lara had seen defendant for a period of 25 days commencing November 28, 1967 at the Psychopathic Hospital at Iowa City pursuant to a court order on application by the county attorney approved by defendant's counsel. He had also talked to defendant 10 minutes the morning of the hearing and his opinion, above referred to, we based on that interview.

On cross-examination Dr. Lara admitted a 10-minute interview is not sufficient basis for such an...

To continue reading

Request your trial
19 cases
  • Franklin, In re
    • United States
    • California Supreme Court
    • May 12, 1972
    ...Kearns (Me.1971) 278 A.2d 132, 134--138; State ex rel. Schopf v. Schubert (1970) 45 Wis.2d 644, 173 N.W.2d 673, 676--678; State v. Allan (Iowa 1969) 166 N.W.2d 752, 760; Mills v. State (Del.1969) 256 A.2d 752, 755--758; Newton v. Brooks (1967) 246 Or. 484, 426 P.2d 446, 449--450; Bailey v. ......
  • Benham v. Edwards
    • United States
    • U.S. District Court — Northern District of Georgia
    • November 14, 1980
    ...of a mental defect, it is reasonable to believe that it may be repeated until the defendant is cured."); See also, State v. Allan, 166 N.W.2d 752, 758 (Iowa 1969). Although the presumption has garnered wide acceptance among jurists, the literature emanating from the medical profession indic......
  • State v. Lass
    • United States
    • Iowa Supreme Court
    • April 16, 1975
    ...desired to inspect statements of witnesses or others, he should have included them in his motion to produce and complied with State v. Eads, 166 N.W.2d 766 (Iowa). We hold that the trial court acted within its discretion in ruling that the information was sufficient. See State v. Shephard, ......
  • People v. Chavez
    • United States
    • Colorado Supreme Court
    • June 1, 1981
    ...supra; In re Franklin, supra; In the Matter of Lewis, 403 A.2d 1115 (Del.1979); Mills v. State, 256 A.2d 752 (Del.1969); State v. Allan, 166 N.W.2d 752 (Iowa 1969); State ex rel. Barnes v. Behan, 80 S.D. 370, 124 N.W.2d 179 We conclude that where, as here, the defendant has been adjudicated......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT