Moses v. Tarwater

• Decision Date: 10 April 1952
• Docket Number: 6 Div. 315
• Citation: 58 So.2d 757,257 Ala. 361
• Parties: MOSES v. TARWATER.
• Court: Alabama Supreme Court

Page 757

58 So.2d 757

257 Ala. 361

MOSES v. TARWATER.

6 Div. 315.

Supreme Court of Alabama.

April 10, 1952.

Rehearing Denied May 15, 1952.

Walter G. Woods, Tuscaloosa, for appellant.

McCorvey, Turner, Rogers, Johnstone & Adams and C. M. A. Rogers, Mobile, McQueen & McQueen and Jas. Morrisette, all of Tuscaloosa, Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for appellee.

PER CURIAM.

This appeal is from an order made by Hon. Reuben H. Wright, Judge of the Sixth Judicial Circuit, remanding the petitioner, Dr. Alfred G. Moses, to the custody of the Superintendent of Bryce Hospital, a State Institution for the treatment of insane persons, located at Tuscaloosa, Alabama. The appeal is authorized by § 369, Title 15, Code of 1940, which dispenses with a bill of exceptions and assignment of error.

In said habeas corpus proceedings, the petitioner seeks his discharge on the ground that in the proceedings for his commitment conducted by Norvelle R. Leigh, Jr., as Judge of Probate of Mobile County, in that without notice to petitioner he was denied due process of law under said ex parte proceedings under the statutes. The statutes which petitioner attacks as unconstitutional are §§ 208, 210, Title 45, Code of 1940. The basis of his contention is that said § 210 leaves the right of petitioner to notice and hearing to the discretion of the Judge of Probate, ignoring the provisions of the Constitutions, both State and Federal, that no person shall be deprived of his liberty without due process of law.

The trial was had before the Judge and a jury, resulting in the order appealed from remanding petitioner to the custody of the Superintendent of Bryce Hospital. The habeas corpus proceedings are authorized by § 3, Title 15, Code of 1940. The power to hear the proceedings is vested in the Judge, not in the Court. Code of 1940, Title 15, §§ 6 and 7. At the hearing Judge Wright denied the petitioner's contention, sustained the constitutionality of the statutes and upheld the validity of the commitments made by Judge Norville R. Leigh, Jr.

Among the other averments in the petition we find the following: 'Your petitioner is sane and is entitled to his liberty.' A statement of the substance of the evidence is made by the trial Judge and certified by him to be such. We quote from the statement which is authorized by § 369, Title 15, Code of 1940, as follows:

'The evidence was overwhelming that Dr. Moses was insane and should not be discharged and the jury so found, and the Court so adjudged and determined.

'This is a sad case but the Court is convinced that the jury verdict is right and should be sustained both for the safety and well being of the public and of Dr. Moses.'

It is familiar law that the constitutionality of a law will not be considered on appeal unless essential to the decision of the actual case before the court. State ex rel. Knox v. Dillard, 196 Ala. 539, 72 So. 56.

The judgment of the trial Judge remanding the petitioner to the custody of the Superintendent of Bryce Hospital is affirmed without prejudice. Code of 1940, Title 15, § 3; 25 Am.Jur. § 156, p. 250.

Affirmed.

LIVINGSTON, C. J., and FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.

BROWN, J., dissents.

BROWN, Justice (dissenting).

The petitioner seeks his discharge from Bryce Hospital, a State Institution for the treatment of insane persons, on two grounds. The first is that the statutes under which he was committed to said institution are violative of the due process clauses of the Constitutions, both State and Federal, in that §§ 208 and 210, Title 45, Code of 1940, leave to the discretion of the probate judge of the county of petitioner's residence whether he shall be committed with or without notice and a hearing. The second is that he is now sane and illegally restrained of his liberty.

The petition and the exhibit thereto attached show that after an ex parte investigation by the Judge of Probate of Mobile County, at which the petitioner was not present and of which he was not informed or advised, he was committed to and confined in Bryce Hospital, where he has remained up to and including the time of the filing of this petition. On the filing of the petition with Hon. Reuben H. Wright, one of the Judges of the Sixth Judicial Circuit of Alabama, the petitioner demanded a trial by jury. A jury was impaneled and a hearing had before Judge Wright and the jury, resulting in a verdict by the jury and a declaration by the Judge that the petitioner is insane and he was remanded to the custody of the superintendent of said institution.

Following the requirements of § 369, Title 15, Code of 1940, the trial judge filed as a part of the record a summary of the evidence adduced at the hearing, concluding with the statement that, 'The evidence was overwhelming that Dr. Moses was insane and should not be discharged and the jury so found and the court so adjudged and determined.'

In his return to the writ J. S. Tarwater, Supt. of the Alabama State Hospital, states that he is the Superintendent of Alabama State Hospitals and that his return is made in his official capacity and that as such Superintendent he has in his custody Dr. Moses. In his return he further states:

'3. Dr. Alfred G. Moses was originally committed to Bryce Hospital at Tuscaloosa, Alabama, as a paying insane patient, in accordance with a committment signed by Norvelle R. Leight, Jr., Judge of Probate of Mobile County, Alabama, and dated February 21, 1946, a copy of which is attached as Exhibit 'A' and made a part of this return. He was received and admitted at Bryce Hospital under said committment on February 22, 1946, and remained there as such a patient until on the application of his wife he was furloughed to her custody on August 13, 1946, and later discharged February 13, 1947, under the provisions of Sections 218 and 219, Title 45, Code of 1940, on the belief and hope that he had then been restored to a normal or comparatively safe and good mental condition sufficiently long to warrant the opinion on the part of the Superintendent that he ought to be returned to his home.

'4. Thereafter, he was again committed to Bryce Hospital as a paying insane patient by committment of the Honorable Norvelle R. Leigh, Jr., Judge of Probate of Mobile County, Alabama, dated April 14, 1948, and readmitted on April 15, 1948.

'5. Dr. Moses is now in my custody as Superintendent of said Hospital as a paying insane patient at Bryce Hospital under and by virtue of the authority of the said writ signed by the Judge of Probate of Mobile County, Alabama, dated April 14, 1948, a copy of which is attached as Exhibit 'B' and made a part of this return.

'6. On the advice of counsel it is denied that said Alfred G. Moses was committed under a law of the State of Alabama which is unconstitutional and void in that it deprives the said Alfred G. Moses of his liberty without due process of law as guaranteed to him under the Constitution of the United States of America and under the Constitution of the State of Alabama and it is also denied on advice of counsel that the said Alfred G. Moses is now being deprived of his freedom and civil liberty contrary to the Constitution of the United States of America and contrary to the Constitution of the State of Alabama * * *.'

As a part of said return and attached as Exhibit A thereto are two certificates of Norvelle R. Leigh, Jr., Judge of Probate of Mobile County, the first being made on the 21st of February, 1946, and the second on the 14th of April, 1948, containing the following statement: '* * * it having been alleged to me that Dr. Alfred G. Moses, a resident of said County, is insane, and that his own and public welfare demand that he be sent to the Hospital for insane persons for custody and treatment, pursuant to the statutory provisions in such cases, I have called before me the following Credible witnesses Mrs. Birdie F. Moses, Claude M. Land, Mrs. L. W. Uber, and Dr. Henry B. Gwynn, M. D, a reputable physician, practicing medicine in the State, and having examined them under oath, and otherwise fully investigated the facts of the case, with the said Dr. Alfred G. Moses, not present in court, I hereby certify that sufficient proof has been adduced before me to satisfactorily show that the said Dr. Alfred G. Moses is so defective mentally that he ought to be committed to the Hospital for insane persons for safe keeping and treatment.' [Italics supplied.]

In a motion duly sworn to, appellant's attorney alleges the following facts:

'Your petitioner further shows that the said Dr. Alfred G. Moses was committed upon the information and belief of this petitioner upon a complaint by one Birdie Feld Moses, the wife of the said Dr. Alfred G. Moses, and that the wife of the said Dr. Alfred G. Moses has requested the said Dr. J. S. Tarwater to allow no one to visit the said Dr. Alfred G. Moses without the consent of the immediate family. That this rule of allowing no visitors without the consent of the family is a hospital rule invoked by the said Dr. J. S. Tarwater himself, and promulgated by the said Dr. J. S. Tarwater. Your petitioner further avers that it is his belief that to deny him the privilege of visiting the said Dr. Alfred G. Moses will deprive the plaintiff of a fair trial in the said cause. Your petitioner further avers that it is necessary for your petitioner to see certain hospital records which pertain to the said Dr. Alfred G. Moses which are in the custody of the said Dr. J. S. Tarwater and also that it be necessary for the Doctors that your petitioner desires to examine Dr. Alfred G. Moses to see such records. Your petitioner further avers that it is necessary for your petitioner to talk to and communicate with the said Dr. Alfred G. Moses. And, your petitioner further avers that it is necessary for other persons and physicians to talk to him and examine him in order to testify as to his condition upon the trial of this...