Ex parte Boehme, 26199

• Decision Date: 10 December 1952
• Docket Number: No. 26199,26199
• Parties: Ex parte BOEHME.
• Court: Texas Court of Criminal Appeals

Page 206

255 S.W.2d 206

158 Tex.Crim. 278

Ex parte BOEHME.

No. 26199.

Court of Criminal Appeals of Texas.

Dec. 10, 1952.

Rehearing Denied Feb. 25, 1953.

D. M. Teague and Frank Ivey, Dallas, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

Relator was indicted for a criminal offense, and prior to a trial in Criminal District Court No. 2 of Dallas County, he pleaded insanity as a bar to prosecution. The jury found him insane at the time of the commission of the offense as well as at the time for the trial. He was committed to the custody of the sheriff in accordance with the provisions of Article 932a, Vernon's Ann.C.C.P. The County Judge acted under the provisions of said article and committed relator, first to the Veterans Hospital and, thereafter, to the State Hospital at Terrell, Texas.

This application is brought for the purpose of securing his release. It is alleged that he has been restored to his sanity and that the Superintendent of the State Hospital has stated in writing that he is now of sound mind and knows the difference between right and wrong, that he realizes the consequences of his acts. The matter has been presented to the Judge of Criminal District Court No. 2 of Dallas County, where the case was tried, but the Judge refused to act on the application for his release, expressing a doubt as to the sufficiency of the notice given to him and also as to his jurisdiction to enter the order requested. Application was then filed in this court.

The question is whether or not the county court which issued the order of commitment, sending him to the State Hospital, or the court where the issue of insanity was determined has jurisdiction to hear the application. This question is a difficult one and the decisions of our court have not been fully in accord on the subject.

Prior to the enactment of Chapter 466, Laws of the 45th Legislature, 1937, beginning at page 1172, we had a similar though somewhat different procedure by which a party charged with crime may plead and have adjudicated the question of his sanity at the time of the commission of an alleged offense, and also at the time of trial. Under such former procedure one who had been found of unsound mind at the time of the commission of an offense was ordered released and there was no provision for holding him until he could be committed to a state hospital for the insane. The procedure generally followed was that a complaint was filed in the county court, in accordance with the provisions of the civil statute regulating the trial of lunatics, a jury was impaneled, the evidence heard, and they determined again the question of his sanity. If found to be insane, it became the duty of the county judge to commit him to a state hospital in accordance with detailed provisions of the law at that time.

The Act of the 45th Legislature had as its expressed purpose to provide 'for the commitment of such persons to a State hospital for the insane * * *,' without the necessity of the services of another jury in another trial on the identical issues in a county court. This we understand from the caption and the purpose clause of said act to be the chief purpose. In the event a person charged with crime shall have been tried on the issue and found insane at the time of the commission of the offense and at the time of the trial the procedure shall be as follows:

* * * the Court shall thereupon make and have entered on the minutes of the Court an order committing the defendant to the custody of the sheriff, to be kept subject to the further order of the County Judge of the county, and the proceedings shall forthwith be certified to the County Judge who shall at once take the necessary steps to have the defendant committed to and confined in a State hospital for the insane until he becomes sane.' Article 932a, Sec. 1, part of subsec. b.

It is our conclusion that the District Court does not commit the individual to a hospital, he simply orders the sheriff to hold the party to await the procedure by the county judge. In order to expedite such procedure the statute then directs that a certified copy of the proceedings in the trial court shall be sent to the county judge. The trial judge makes no order directing the county judge as to what he shall do, but the act itself, as a matter of law, is the authority for the action taken by the county judge in committing the individual to a hospital for the insane. It may be that provisions of the civil statute regulating the commitment and admission to such hospital have yet to be complied with. There is nothing in this article to amend or repeal such requirements. Presumably all of this was done by the county judge committing relator to the State Hospital in which he is now confined.

Section 3 of the foregoing Article 932a reads as follows:

'When the defendant so committed to a hospital for the insane becomes sane, the superintendent of the hospital shall give written notice of that fact to the Judge of the Court from which the order of commitment issued. Upon receipt of such notice the Judge shall require the sheriff to bring the defendant from the hospital and place him in the proper custody until the hearing may be had before a jury in such Court to determine defendant's sanity, and if he be found sane, he shall be discharged, unless he had been previously found to be sane at the time at which he is alleged to have committed the offense charged, in which event, unless previously acquitted, he shall be tried for the offense charged.'

It will be noted that in case of recovery of sanity notice shall be given 'to the Judge of the Court from which the order of commitment issued.' This is further made evident by the fact that the county court has machinery for the retrial, or for the trial, of a party seeking his discharge from a hospital for the insane. No machinery is provided for Criminal District Court No. 2 of Dallas County to draw a jury and try relator, in the present state of the record.

Attention is called to the fact that when a defendant so committed becomes sane it is the duty of the superintendent of the hospital confining him to give written notice of that fact to the judge who committed him. This, however, is left to his discretion and judgment as to the mental condition of the party, and mandamus will not lie to force the performance of an act within the discretion of the superintendent. The judge who receives the notice will pass upon its sufficiency.

Admittedly, some of the holdings of this court are in apparent conflict with this opinion. In so far as they are they are here specifically overruled.

Relator is lawfully restrained by the hospital authorities and must be so restrained until released under proper procedure by the County Court of Dallas County. This court has no jurisdiction to make any order in the matter.

MORRISON, Judge (concurring).

I agree that this Court is without jurisdiction to make any order in this proceeding, but I cannot bring myself to agree with the opinion of my brethren wherein they hold that the tribunal referred to in Section 3 of Article 932a is the county court of the county where prosecution was originally instituted. As I see the matter, the Criminal District Court of Dallas acquired jurisdiction of the relator when prosecution was instituted therein and must retain jurisdiction to the exclusion of all other courts. The opinion of my brethren empowers a county court to set aside a judgment of a district court, as I view it, and I cannot subscribe to such a rule.

I feel that this question has heretofore been adjudicated by this Court in Wright v. State, 140 Tex.Cr.R. 193, 143 S.W.2d 949, and Ex parte Frailey, 146 Tex.Cr.R. 557, 177 S.W.2d 72, and that the holdings therein are contrary to the conclusion herein reached, and that such decisions are sound and should be followed.

On Motions for Rehearing

WOODLEY, Judge.

The state has filed motion for rehearing complaining of the holding in our original opinion to the effect that the county court is the proper tribunal for the trial of the issue of restoration of sanity, should the superintendent give notice in writing that appellant has become sane. The state agrees that relator's prayer for release should be denied.

Appellant answers by motion for rehearing urging that he is entitled to trial on the issue upon the writing signed by the superintendent, in such court as we may determine to be the committing court referred to in Art. 932a, Sec. 3, Vernon's Ann.C.C.P.

A rather full discussion of the law pertaining to the issue of insanity under our Code of Criminal Procedure and Penal Code may be helpful.

Article 34, P.C. provides for insanity as a defense to crime: 'No act done in a state of insanity can be punished as an offense'; it provides also for insanity as a bar to prosecution: 'No person who becomes insane after he committed an offense shall be tried for the same while in such condition.' And the article provides for insanity as a bar to punishment for crime: 'No person who becomes insane after he is found guilty shall be punished while in such condition.'

The procedure for the trial of the issue of insanity after conviction (insanity as a bar to punishment), the commitment of the convicted person found insane, and the procedure to be followed when he becomes sane, are found in Arts. 921 to 932, inclusive, of the Code of Criminal Procedure, Vernon's Ann.C.C.P. arts. 921-932.

These statutes are not applicable here as relator has not been tried or convicted. It is to be observed, however, that the procedure for committing the insane convicted defendant to the hospital is identical with that found in Art. 932a, V.A.C.C.P. providing for the commitment of an accused found insane at the time of the preliminary trial of that issue or at the time of the trial proper, other than in the particulars hereafter denoted.

Art. 926, C.C.P., under the heading...