Ex parte State ex rel. Patterson, 4 Div. 874

• Decision Date: 09 October 1958
• Docket Number: 4 Div. 874
• Citation: 108 So.2d 448,268 Ala. 524
• Parties: Ex parte STATE of Alabama, ex rel. John M. PATTERSON, Attorney General.
• Court: Alabama Supreme Court

Page 448

108 So.2d 448

268 Ala. 524

Ex parte STATE of Alabama, ex rel. John M. PATTERSON, Attorney General.

4 Div. 874.

Supreme Court of Alabama.

Oct. 9, 1958.

Rehearing Denied Feb. 12, 1959.

John Patterson, Atty. Gen., MacDonald Gallion and Edmon L. Rinehart, Asst. Attys. Gen., Jas. H. Caldwell, Circuit Solicitor, Phenix City, and Henry Weihofen, Albuquerque, N. M., of counsel, for petitioner.

Roderick Beddow and G. Ernest Jones, Birmingham, for respondent.

COLEMAN, Justice.

The State, by the Attorney General, has filed in this court a petition praying for alternative writ of mandamus or rule nisi, ordering the Honorable J. Russell McElroy, as Special Judge of the Circuit Court of Russell County, 'to commit * * * Silas Coma Garrett, III, to the Bryce Hospital * * * to be examined and observed by * * * Dr. J. S. Tarwater, as Superintendent * * * and two members of the medical staff of Bryce Hospital * * * with a view to determining the mental condition of the said Silas Coma Garrett, III, and the existence of any mental disease or defects which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime with which he is charged; or to appear * * * and show cause why he should not do so.'

We issued the rule nisi to show cause, and Judge McElroy, hereinafter referred to as the respondent, duly filed motion to quash, demurrer, and answer.

Silas Coma Garrett, III, hereinafter referred to as the defendant, was indicted by the Grand Jury of Russell County for murder in the first degree. The indictment was returned in open court on December 9, 1954. The answer of respondent admits that '* * * the said Garrett was arrested on, but not before October 10, 1955, on said writ of arrest issued on said indictment.'

Appended to the order made by the respondent wherein he declined to commit the defendant to the State Hospital as requested by the State, there appears an able and comprehensive opinion by the respondent wherein he states certain material facts as follows:

'The defendant has not pleaded not guilty by reason of insanity. He has not asserted his mental incompetency to stand trial. He has not been arraigned on such indictment. There has been no request either by the state or the defendant that the defendant be arraigned on such indictment.

'On October 12, 1955, defendant was in the custody of the sheriff of Russell County, under a writ of arrest issued on such indictment. On that day, i. e., October 12, 1955, this circuit court, acting on the joint recommendation of the state and the defendant, ordered that the defendant be admitted to bail in the amount of $12,500. On that day, i. e., October 12, 1955, the defendant was released on bail produced by him as permitted by such order of the court.

'On the same day that the defendant was released on bail, i. e., October 12, 1955, there was handed to me a written report by the superintendent of the Alabama state hospitals. The superintendent stated in such report, so far as is here pertinent, that 'there is reasonable ground to believe' that the defendant 'was insane at the time of the commission of such offense or presently.'

'On October 13, 1955, I issued an order which recited (a) my reception of the superintendent's report mentioned above, (b) that one of the lawyers for the state had suggested to me that it is my duty to order that the sheriff forthwith deliver the defendant to the superintendent of Alabama state hospitals under the provisions of section 425; and (c) that one of the defendant's lawyers had stated to the circuit solicitor of Russell county in a telephone conversation in my presence that the defendant would never enter a plea of not guilty by reason of insanity to the indictment referred to above. This order of October 13th directed that a hearing be held on October 20th on the matter of whether I am under the duty to order the sheriff to deliver the defendant to the superintendent.

'The lawyers for the state and for the defendant, and the defendant in person, appeared at the hearing.

'At the beginning of the hearing, the state presented a second written report by the superintendent, which I then considered and now consider as supplementary to the first written report. The material matter added by the second written report is a statement therein tending to show the superintendent's opportunity to acquire knowledge of the defendant's mental condition.

'Immediately after the superintendent's second report was handed to me, the defendant's lawyers handed to me a written statement of the defendant's objections to the proposal that I order the sheriff to deliver the defendant to the superintendent.'

'Included among the defendant's objections were objections that the proposed commitment of the defendant to the Alabama state hospitals would deprive him (a) of the constitutional right to bail, and (b) of liberty without due process of law as guaranteed both by the Alabama and federal constitutions.

'No evidence whatever was offered or introduced at the hearing. Both the state and defendant agreed that the matter before me for hearing did not authorize the reception of any evidence whatever with respect to the defendant's mental condition at any time whatever.

'The state has not applied to this circuit court for a revocation of this circuit court's order of October 12, 1955, referred to above, admitting the defendant to bail in the sum of $12,500.'

We do not understand that there is any material dispute as to the accuracy of the foregoing statement of the case.

Respondent states his decision as follows:

'XIII. The Gist Of The Decision Now Being Made.

'I hold that a defendant who is under indictment for a capital offense, who is at large on bail, and who has neither pleaded not guilty by reason of insanity nor asserted that he is mentally incompetent to stand trial, cannot be lawfully committed, over his objection, to the Alabama state hospitals under section 425 for the reason that such a commitment would be (a) a deprivation of the defendant's constitutional right to bail in violation of section 16 of the Alabama constitution and (b) a deprivation of his right to liberty without due process of law in violation of section 6 of the Alabama constitution.

'XIV. Matters Not Decided.

'I decide nothing other than is stated above.'

The statute here involved is § 425 of Title 15, Code 1940, which originated as Act No. 157, Acts of 1933, Extra Session, page 144, and in the part here pertinent recites as follows:

'Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, by the written report of not less than three reputable specialist practitioners in mental and nervous diseases, appointed by the judge, or by the written report of the superintendent of the Alabama state hospitals, that there is reasonable ground to believe that such defendant was insane either, at the time of the commission of such offense, or presently, it shall be the duty of the presiding judge to forthwith order that such defendant be delivered by the sheriff of the county to the superintendent of the Alabama state hospitals, who is charged with the duty of placing such defendant under the observation and examination of himself and two members of his medical staff to be named by him, constituting a commission on lunacy, with the view of determining the mental condition of such defendant and the existence of any mental disease or defect which would affect his present criminal responsibility, or his criminal responsibility at the time of the commission of the crime.

'Such defendant shall remain in the custody of the superintendent of the Alabama state hospitals and subject to the observation of and examination by such commission of lunacy for such length of time as may in the judgment of the commission of lunacy be necessary to determine his mental condition so far as it affects his criminal responsibility.'

That act came before this court in 1936 in Oliver v. State, 232 Ala. 5, 166 So. 615, a case which concerned a defendant indicted for and convicted of murder in the first degree with the death penalty imposed. In that case, the defendant insisted that the trial court erred in refusing to appoint a lunacy commission to examine him under the Act of 1933. In holding that the trial court did not err in refusing so to do this court said 'Under the provisions of the act of 1933 (Gen.Acts 1933, pp. 144, 145), there was no error in refusing defendant's motion to stay the trial in order to appoint a special commission or the superintendent of the state hospitals for the insane to examine him and report his mental condition when the crime was committed and at the time of the trial. This statute merely states or confirms the inherent powers of a court in the premises, as to a defendant to be placed upon trial for crime. Alabama Great Southern R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L.R.A. 442, 24 Am.St.Rep. 764; Id., 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65. The former statute on the same subject, section 7178, Code of 1907, section 4575, Code of 1923, was held, not mandatory, merely discretionary, for the purpose of advising the court. Rohn v. State, 186 Ala. 5, 65 So. 42; Granberry v. State, 184 Ala. 5, 63 So. 975. The former statute bears marked similarity to the act of 1933 (Gen.Acts 1933, p. 144), and was held not mandatory. Gast v. State, 232 Ala. 307, 167 So. 554.

'In construing a statute, if its terms will permit, it should be construed to sustain its constitutionality. If this statute be held to be mandatory, a constitutional question will be presented, in that the right to pass upon the sanity of a defendant to be tried for crime in the circuit court, is a prerogative right that may not be denied that court. There was no error in the denial of the defendant's motion by the trial court.' 232 Ala. 5, 9, 166 So. 615, 616.

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