In re Moynihan

• Decision Date: 12 June 1933
• Docket Number: 32713
• Citation: 62 S.W.2d 410,332 Mo. 1022
• Parties: Ex Parte Edward J. Higgins, for Mary E. Moynihan, Petitioner, v. Emmett F. Hoctor
• Court: Missouri Supreme Court

62 S.W.2d 410

332 Mo. 1022

Ex Parte Edward J. Higgins, for Mary E. Moynihan, Petitioner, v. Emmett F. Hoctor

No. 32713

Supreme Court of Missouri

June 12, 1933

Petitioner remanded.

Hudson Waxelman & Higgins for petitioner.

(1) In a proceeding to declare a person insane or of unsound mind all of the statutory and constitutional requirements must be fully complied with before she can legally be declared insane. Powell v. State of Alabama, 53 S.Ct. 65; State ex rel. Townsend v. Mueller, 51 S.W.2d 8; State ex rel. Terry v. Holtkamp, 51 S.W.2d 13; Citizens State Bank v. Shanklin, 174 Mo.App. 629; State v. Duncan, 195 Mo.App. 541; In re Marquis, 85 Mo. 615; Dutcher v. Hill, 29 Mo 271. (2) In not calling a jury to try the issues in the proceedings to have the petitioner declared of unsound mind or insane, the judge of the St. Louis County Probate Court deprived your petitioner of her constitutional rights, and the action of the court in trying the case without the aid of a jury is void. Amend. XIV, U.S. Constitution; Amend. V, U.S Constitution; Sec. 28, Art. II, Mo. Constitution; Sec. 30, Art. II, Mo. Constitution; State ex rel. Peper v. Holtcamp, 235 Mo. 237; State ex rel. v. Baird, 47 Mo. 201; Kienne v. Wessell, 53 Mo.App. 667.

Roy McKittrick, Attorney-General, Wm. Orr Sawyers and Denton Dunn, Assistant Attorney-Generals, for respondent.

(1) While statutory and constitutional requirements must be complied with in proceedings of inquiry as to the sanity of a person, the judgment of the probate court, having jurisdiction of the subject-matter, and of the person by statutory notice duly served, was presumptively correctly rendered, and is not subject to collateral attack by habeas corpus, or otherwise, for any error not appearing on the fact of the record. National Board v. Fry, 293 Mo. 409. (2) An insanity inquiry is a civil proceeding (State v. Holtcamp, 235 Mo. 238), and a jury is not required therein, unless called for or demanded by the parties, or one of them, that is, either the informant, or the party whose sanity is being inquired into, must call for or demand a jury, if one is wanted, as the perfectly valid Sections 448 to 452, Revised Statutes 1929, properly provide. State ex rel. v. Guinotte, 257 Mo. 11. It is only in felony cases that a defendant cannot waive a jury (State v. Talken, 316 Mo. 600), and to secure a trial by jury in a civil case a jury must be demanded. Hecker v. Bleish, 327 Mo. 377, 385, 37 S.W.2d 444; Bratshi v. Loesch, 51 S.W.2d 71. (3) The right to trial by jury as "heretofore enjoyed," meaning at common law at the time of the adoption of our Constitution or that of the United States, certainly does not put insanity inquests in the same class as prosecutions for felonies.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is an application to this court for writ of habeas corpus. The application for writ, made by the attorneys for Mary E. Moynihan, states that she is unlawfully deprived of her liberty by the superintendent of the State Insane Hospital No. 4 at Farmington, Missouri. The writ was issued and it is shown by the return of the superintendent of the State Insane Hospital and the reply thereto of petitioner and the certified copies of the record attached to these pleadings that as stated in the statement in petitioner's brief:

"A proceeding to have Mary E. Moynihan, the petitioner herein, declared of unsound mind and incapable of managing her own affairs, was instituted in the Probate Court of St. Louis County, Missouri, on July 17, 1931, by the filing of an information in writing with Michael J. Moynihan, her husband, as the informant, alleging that the said Mary E. Moynihan was a person of unsound mind and incapable of managing her own affairs and praying the court to adjudge her a person of unsound mind and incapable of managing her own affairs.

"A summons was issued to the Sheriff of St. Louis County, Missouri, by Sam Hodgdon, who had theretofore been elected and had qualified and was acting as Judge of the Probate Court of St. Louis County, Missouri, ordering and directing the said Mary E. Moynihan to appear in the St. Louis County Probate Court on the 7th day of August, 1931, to undergo a trial as to her sanity.

"It appears, however, that on July 17, 1931, at the same time the said Sheriff of the County of St. Louis served the said summons on the said Mary E. Moynihan, petitioner herein, she was then and there arrested and conveyed by the St. Louis County Sheriff to the State Insane Asylum at Farmington."

This arrest was made pursuant to the following order of the probate court, made July 17, 1931:

"Complaint of Michael J. Moynihan having been made to the Probate Court of the County of St. Louis that the above named Mary E. Moynihan is so far disordered in her mind as to endanger her own person, and the person or property of others, and has no guardian, and is not in the care or charge of any person, and that the court having heard testimony in regard to the facts complained of, does consider, adjudge, decree, order and direct that said Mary E. Moynihan be apprehended, restrained and confined in the State Hospital No. 4, Farmington, Missouri, and that the sheriff of this county shall apprehend said Mary E. Moynihan and deliver her at the said State Hospital No. 4, Farmington, Missouri, to the Superintendent thereof and that the said Superintendent be and he is hereby directed and empowered to confine her until the further order of this court."

Thereafter, on July 20, 1931, the following order was also made by the County Court of St. Louis County:

"And now it appearing to the court that the Probate Court in the County of St. Louis, State of Missouri, has filed information in writing that Mary E. Moynihan is so far disordered in her mind as to endanger her own person and the person and property of others, and has no guardian and is not in the care or charge of any person, and now the above cause coming on to be heard, and the facts as stated, being proven to the satisfaction of the court by the Probate Court, it is considered by the court that the said Mary E. Moynihan is so far disordered in her mind that she be apprehended, restrained and confined in the State Hospital No. 4, Farmington, Missouri. It is therefore ordered by the court that the said Mary E. Moynihan be admitted, restrained and confined in the State Hospital No. 4, Farmington, Missouri, as a county patient, until further order of this court, and that the clerk of this court make out and transmit to the Superintendent of said State Hospital No. 4 a certified copy of this order with the request that the said Mary E. Moynihan be admitted to said institution."

The probate court evidently acted under authority of Sections 498, 499, Revised Statutes 1929, and the county court under Sections 8645-9, Revised Statutes 1929. These latter sections were enacted in 1909 (see Laws 1909, pp. 587-8) evidently to give the county court the duty of caring for indigent persons found to be insane. [See, also, Secs. 451 and 454, R. S. 1929; Redmond v. Q. O. & K. C. Railroad Co., 225 Mo. 721, 126 S.W. 159.]

As further stated in petitioner's brief: "On the 7th day of August, 1931, he (probate judge) had said case called for trial and appointed one Martin Rasmussen, an attorney at law, to represent the said Mary E. Moynihan, the petitioner herein. Immediately after appointment of said attorney, neither party having asked for a jury, the court proceeded to try the case, sitting as a jury, and without the defendant (petitioner herein) being present."

The judgment of the probate court, as shown by its record, was as follows:

"On information of Michael J. Moynihan filed in this court on the 17th day of July, 1931, and the hearing as to the alleged insanity of Mary E. Moynihan having been set for this day and it appearing that Mary E. Moynihan was personally served with notice as required by law that an inquiry would be had on said date as to her sanity and that she was entitled to be present and be assisted by counsel; the court of its own motion doth therefore appoint Martin Rasmussen, an attorney, to represent her in this behalf, and there also comes the informant.

"The court finds that neither the party giving the information in writing, nor the party whose sanity is being inquired into has called for or demanded a jury, therefore, the facts are inquired into by the court sitting as a jury, and the court sitting as a jury having heard all the evidence and proofs adduced, doth find that said Mary E. Moynihan is a person of unsound mind and incapable of managing her affairs.

"Whereupon, it is ordered by the court in accordance with the finding, that said Mary E. Moynihan is a person of unsound mind and incapable of managing her affairs, the court doth thereupon appoint Michael J. Moynihan, guardian of the person and estate of said Mary E. Moynihan, and orders that he take charge of her estate, that before entering upon his duties as such guardian he execute a bond in the sum of $ 500 for the benefit of said estate.

"Said guardian now files his bond in the aforesaid sum, which bond is duly examined and approved.

"The above named Mary E. Moynihan having this day been declared by the court to be a person of unsound mind, and it appearing to the court from the evidence presented that said Mary E Moynihan is so far disordered in her mind as to endanger her own person and property of others, it is ordered, adjudged and decreed that said Mary E. Moynihan be restrained and confined in the State Hospital No. 4, Farmington, Missouri, and the Superintendent thereof is hereby directed and empowered to confine the said Mary E. Moynihan in said State Hospital No. 4, Farmington, Missouri, until the further orders...