Fisher v. Fraser, 38373
| Decision Date | 03 July 1951 |
| Docket Number | No. 38373,38373 |
| Citation | 233 P.2d 1066,29 A.L.R.2d 699,171 Kan. 472 |
| Parties | , 29 A.L.R.2d 699 FISHER v. FRASER, Sheriff et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. Under the statute, G.S.1949, 62-1532, and our decisions construing its terms insanity at the time of the alleged commission of an offense is a defense which must be asserted, presented, and determined during the trial of the case.
2. The guilt or innocence of one accused or convicted of crime is not justiciable in a habeas corpus proceeding.
3. Where in a criminal prosecution resulting in the conviction, sentence and imprisonment of a defendant for the crime of grand larceny the defense of irresponsibility by reason of insanity on the date of the commission of the offense was not raised at the trial the defendant cannot obtain a review of that question in a habeas corpus proceeding.
Vincent G. Fleming, of Larned, for petitioner.
Glee Smith, Jr., County Atty., Larned and Willis H. McQueary, Asst. Atty. Gen. (Harold R. Fatzer, Atty. Gen., on the briefs), for respondents.
This is an original proceeding in habeas corpus wherein the petitioner seeks a writ directing his release from confinement in the Kansas State Industrial Reformatory.
The events and proceedings resulting in petitioner's conviction and sentence are not in dispute but should be briefly stated before reference is made to his petition and the single ground on which he relies as requiring his release from the institution in which he is now confined.
Petitioner was adjudged insane by the probate court of Shawnee county on the 27th day of February 1947 and committed to the Veterans' Administration Hospital at Topeka as an insane person. Thereafter the probate court appointed a guardian for his person and estate. August 2, 1948, he was discharged by the authorities at the hospital as restored. Subsequently, on August 5, 1948, the probate court entered an order declaring him sane and restoring him to all his rights as a citizen. However, no order was entered discharging his guardian at that time and the record discloses no order has ever been made discharging that fiduciary.
In April 1950 petitioner was charged by information, filed in the district court of Shawnee county, with the crime of robbery in the first degree. During the course of that proceeding the county attorney of Shawnee county filed a verified motion charging he was insane and asking for the appointment of a medical commission to determine his sanity. This motion was granted and a commission was appointed. On April 26, 1950, after that body had returned a report finding petitioner insane the district court of Shawnee county committed him to the Kansas State Asylum for the dangerous insane at Larned, Kansas, for safekeeping and treatment. July 26, 1950, petitioner and another inmate of the Asylum at Larned escaped from such institution, took an automobile from the grounds of the hospital, and fled to Oklahoma where he was soon apprehended and returned to the institution from which he had escaped.
October 25, 1950, petitioner was released from the Larned hospital and returned to the district court of Shawnee county where he entered a plea of guilty to the crime of robbery in the first degree as charged in the information theretofore filed against him and was paroled by the parole board of Shawnee county.
Thereafter, on November 14, 1950, complaint was filed against petitioner in the county court of Pawnee county charging him with larceny of the automobile taken by him at the time he escaped from the Larned hospital. A warrant was issued and he was arrested and brought back to Pawnee county to answer that charge. After a preliminary hearing at which he was bound over to the district court he was charged by information in that court with the commission of such crime. When the petitioner was arraigned in district court to answer the charge contained in the information Vincent G. Fleming, a reputable attorney of Larned, was appointed by the court to represent him and immediately filed a written request that he be examined by a medical commission for the purpose of determining his sanity. This request was granted and a commission was appointed. December 19, 1950, this commission returned its report, finding the petitioner sane, neither an idiot, nor an imbecile, nor an epileptic, and that as of said date he was able to comprehend his position and make his defense in district court. Thereafter and on January 2, 1951, Mr. Fleming filed and argued a motion to quash the information and to discharge petitioner on the ground he was not legally capable of committing the crime of larceny of an automobile on the date complained of in the information for the reason that three months prior to the commission of such alleged offense and three months thereafter he was an adjudged lunatic, committed to the care and safekeeping of the hospital for the dangerous insane at Larned where the automobile involved was taken from the hospital grounds by him in an attempt to escape. After consideration this motion was overruled by the district court and no appeal was taken from that action. The record as to what happened thereafter is not as complete as it might be. However, there is no dispute as to the facts which, gleaned from allegations of the petition and admissions of the parties in their briefs and on oral arguments can be stated as follows:
On January 22, 1951, petitioner accompanied by his attorney, Louis H. Eversole, a capable attorney of Topeka, who was also representing the petitioner's mother and guardian, made their appearance in Larned and after some negotiations with the county attorney succeeded in inducing that official to file an amended information in which the crime charged against petitioner was reduced from larceny of an automobile, punishable upon conviction by confinement for not less than five to fifteen years, to grand larceny, the punishment for which upon conviction is not to exceed five years. Thereafter, and on the same date, petition...
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