Howard v. Overholser, 8120.

• Court: U.S. Court of Appeals — District of Columbia Circuit
• Writing for the Court: GRONER, Justice, and MILLER and RUTLEDGE, Associate Justices
• Citation: Howard v. Overholser, 130 F.2d 429, 76 U.S.App.D.C. 166 (D.C. Cir. 1942)
• Decision Date: 30 June 1942
• Docket Number: No. 8120.,8120.
• Parties: HOWARD v. OVERHOLSER, Superintendent of Saint Elizabeths Hospital

76 US App. DC 166, 130 F.2d 429 (1942)

HOWARD v. OVERHOLSER, Superintendent of Saint Elizabeths Hospital

No. 8120.

United States Court of Appeals for the District of Columbia.

Decided June 30, 1942.

Mr. Al Philip Kane, of Washington, D. C., for appellant. Jerome Howard also entered an appearance pro se.

Mr. Bernard Margolius, Assistant United States Attorney, with whom Mr. Edward M. Curran, United States Attorney, and Mr. Charles B. Murray, Assistant United States Attorney, all of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The proceeding is in habeas corpus. The petition was filed in August, 1941, in forma pauperis and in propria persona. Petitioner was then, as now and since August, 1940, a person adjudicated of unsound mind, confined in respondent's custody at St. Elizabeths Hospital.

The circumstances leading to commitment and the filing of this petition were shortly as follows. In March, 1940, petitioner was arrested for the murder of his mother. Her body was found in a residence which she owned, and occupied with him at 815 Taylor Street Northwest, Washington. He admitted killing her but could give no reason. He was taken before the grand jury, but lunacy proceedings were instituted and an Ignoramus was returned on the charge of murder. In August, 1940, the District Court, after hearing before the Commission on Mental Health and on its report and recommendation,¹ adjudged petitioner of unsound mind and ordered his commitment. The order expressly found he was a resident of the District of Columbia within the provisions of what is now Section 21-317, D.C.Code (1940), set forth below. There was no objection to the jurisdiction or the findings and no appeal was taken from the order.

Petitioner was not represented by counsel or guardian ad litem in the present proceeding in the trial court. Counsel assigned here has appeared for him on the appeal.

Originally the petition sought alternative relief, complete discharge as a sane person or transfer into the custody of the State of Colorado as an insane person resident there pursuant to Section 21-317. The section is as follows:

"If an insane person be found by the commission, subject to the review of the court, not to be a resident of the District of Columbia, he may be committed by the court to Saint Elizabeths Hospital as a District of Columbia patient until such time as his residence shall have been ascertained. Upon the ascertainment of such insane person's residence in some other jurisdiction, he shall be transferred to the state of such residence. The expense of transferring such patient, including the traveling expenses of necessary attendants to insure his safe transfer, shall be borne by the District of Columbia only if the patient be indigent.

"Any insane person found by the commission to have been a resident of the District of Columbia for more than one year prior to the filing of the petition, and any person found within the District of Columbia whose residence can not be ascertained, who is not in confinement on a criminal charge, may be committed by the court to, and confined in, said Saint Elizabeths Hospital, or any other hospital in said District, which, in the judgment of the commission of said District, is properly constructed and equipped for the reception and care of such persons, and the official in charge of which, for the time being, is willing to receive such persons.

"`Resident of the District of Columbia,' as used in this section, means a person who has maintained his principal place of abode in the District of Columbia for more than one year prior to the filing of the petition provided for in section 21—310."

The return justified the detention by virtue of the order of commitment; denied petitioner is sane; set forth his physicians' opinions that he is dangerous; objected to his being discharged; stated respondent is unaware whether he is a resident of Colorado, and objected to his being transferred to that state "except on conditions which will protect both the patient and the public."

After the return was made petitioner filed a "concise statement of my case in writing," which said in part: "This Hearing has but one purpose, — to effect my transfer to the State of Colorado. * * * I waive my right to a sanity hearing at this Hearing as I have no expert testimony. * * * I repeat: The sole object of this Hearing is to effect my transfer to the Colorado State Hospital for the Insane, at Pueblo, Colorado."

Accordingly, the hearing and all subsequent proceedings have been conducted on the basis that their only purpose is to secure an order for petitioner's transfer to the Colorado authorities. No evidence was offered to show that he is sane or that his commitment was illegal. Regarding the issues as narrowed to the question of transfer, petitioner and his counsel insist his legal residence is controlling. The theory is that he is a resident of Colorado, was such when he was committed, and this entitles him under Section 21—317 to an order for the transfer to be made in this proceeding. Accordingly, the petition alleges his Colorado residence and evidence was presented which may be taken as sufficient to establish it.

Respondent does not deny that petitioner is a resident of Colorado. Rather the return states he is unaware whether petitioner is a resident of the District of Columbia or of Colorado and calls attention of the court to the duty of the Board of Public Welfare to ascertain the legal residence of patients supported at the expense of the District and to arrange for transfer if the patient is harmless. Although the return asserts petitioner is not harmless, it states respondent does not object to a hearing on the writ, but does object "to his being discharged * * * or being transferred except on conditions which will protect both the patient and the public." Petitioner is described as being, in the opinion of the physicians who have cared for him, "of unsound mind suffering from a paranoid form of dementia precox * * * dangerous and should not be discharged into the community."

Respondent offered no evidence that petitioner is not a resident of Colorado. Rather the record discloses, in line with the return's suggestion, that the Board of Public Welfare made inquiry of the Colorado authorities with a view to having them recognize petitioner's claim and receive him in custody as a resident insane person. The Board supported the claim with the results of its own investigation. Apparently as a result of the inquiry, perhaps also of suggestions made to petitioner by the superintendents of Colorado hospitals, including the State Hospital for the Insane, the matter was referred to the County Court of El Paso County, where petitioner resided from 1925 until May, 1939, and where he claimed his legal residence. Under Colorado law the county court determines upon the admission of insane residents to state institutions for their care.² The record contains what purports to be a copy of an order of the court. It finds that petitioner is not a resident of Colorado, that he has an estate and therefore is not a pauper, and concludes he is not entitled to be returned to Colorado as a resident insane person.

In this state of the pleadings and evidence the trial court found that "the State of Colorado upon being requested to accept petitioner as a bona fide resident of that jurisdiction refused to accept him for hospitalization and mental treatment." As conclusions of law it held that petitioner is not entitled to be transferred and has established no ground for release from custody. Accordingly it discharged the writ, dismissed the petition, and remanded petitioner to respondent's custody.

The court made no finding or conclusion on the question of residence. But the findings of fact set forth the physical changes of abode of petitioner and his mother over a period of many years. It was shown that they resided in El Paso County, Colorado, from 1925 to May, 1939. During all this period she owned the Taylor Street property, but the evidence is clear that her legal residence and petitioner's were in Colorado until they came to Washington in May, 1939. They occupied the Taylor Street house until August, when they returned to Colorado. They remained there until November. Then they came back to Washington and occupied the residence here until the matricide. From the evidence it could have been found they came and remained here in order to sell or rent the property and always had the intention to return to live in Colorado.

Petitioner and his counsel insist the controlling question is his legal residence and that the undisputed evidence shows it is in Colorado. They construe Section 21—317, therefore, as conferring upon him the right to be transferred to that state. Corollary contentions are that habeas corpus is the proper remedy and the courts of this jurisdiction have power to enforce the right by an order for the transfer in this proceeding.

The statutory provision for transfer applies literally to insane persons found not to be resident in the District. It does not purport to confer such a right on persons found to be resident here or whose residence cannot be ascertained. The finding referred to obviously is the one made in the commitment proceedings, not in some other. Petitioner was found to be a resident of the District when he was committed. It is at least doubtful therefore that he is within the terms of the section.

Counsel seeks to avoid this by attacking, not the validity of the commitment, but merely the finding of residence. He argues the finding is invalid, because the court made no independent determination of residence, but merely adopted the finding of the commission in this respect. We think the contention is without merit, since the statute provides a period of five days following the filing of the...