Moulton, In re

• Decision Date: 05 December 1950
• Citation: 77 A.2d 26,96 N.H. 370
• Parties: In re MOULTON.
• Court: New Hampshire Supreme Court

Page 26

77 A.2d 26

96 N.H. 370

In re MOULTON.

Supreme Court of New Hampshire.

Dec. 5, 1950.

Gordon M. Tiffany, Atty. Gen., and Robert A. Jones, County Solicitor, Lebanon (Mr. Tiffany orally), for the state.

William Maynard, Plymouth, for the defendant.

KENISON, Justice.

Prior to the passage of the New Hampshire Sexual Psychopath Act, Laws 1949, c. 314, the Legislature appointed an interim commission to study the problem. Laws 1947, cc. 301, 310. The commission, after investigation and public hearings, made its report on March 1, 1949. See Report of the Interim Commission to Study the Cause and Prevention of Serious Sex Crimes. The statute as recommended by the commission was substantially followed by the Legislature with only minor changes. The statute in the main follows the one recommended as a 'model act' in a Note, The Legal Disposition of the Sexual Psychopath, 96 U. of Pa.L.Rev. 872, 884 (1948). The general question presented in this appeal is the constitutionality of the New Hampshire act.

The policy and purpose of the act is set forth in section 1. 'Finding of Necessity and Purpose. It is hereby declared that the frequency of sex crimes within this state necessitates that appropriate measures be adopted to protect society more adequately from agressive sexual offenders; that the laws of this state do not provide for the proper disposition of those who commit or have a tendency to commit such crimes and whose actions result from a psychopathic condition; that society as well as the individual will benefit by a civil commitment which would provide for indeterminate segregation and treatment of such persons; that the necessity in the public interest for the provisions hereinafter enacted is a matter of legislative determination.' Section 2 of the act contains the following definition: 'Definitions. I. The term 'sexual psychopath' as used in this act means any person suffering from such conditions of emotional instability or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible with respect to sexual matters and thereby dangerous to himself or to other persons.'

During the defendant's examination by the three medical experts, he voluntarily gave information concerning himself and his activities. No compulsion was used or threatened. The use of such information obtained under those circumstances is not unconstitutional and does not violate the N. H. Const. Part First Art. 15 which prohibits the compulsory use of self-incriminating evidence. People v. Chapman, 301 Mich. 584, 4 N.W.2d 18; People v. Redlich, 402 Ill. 270, 83 N.E.2d 736.

Section 5 VI provides that there 'shall be no right to a trial by jury' and the Superior Court alone is empowered to 'make an order determining whether or not the person proceeded against is a sexual psychopath.' Section 5 V. The absence of the right to trial by jury appears in the commitment of insane persons or mentally ill persons R.L. c. 17, §§ 1, 16; Laws 1949, c. 225 as well as the control of neglected and delinquent children. R.L. c. 132; Petition of Morin, 95 N.H. 518, 68 A.2d 668. It is the general rule that trial by jury is not a constitutional requirement in such special statutory proceedings. 37 Mich.L.Rev. 613, 623. The statutes relating to the care, control and treatment of sexual psychopaths are analogous to insanity proceedings and it cannot be said that it is a common law requirement embedded in the Constitution that trial by jury is a prerequisite of the validity of such acts. Such is the weight of authority. State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297, affirmed 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744; Glueck, Psychiatric Examination of Persons Accused of Crime, 36 Yale L.J. 632.

It is claimed that the discretionary inquiry allowed by section 3 II(1) establishes an invalid and arbitrary classification in that the County Solicitor is the one to determine against whom the proceedings shall be instituted. This contention has been rejected in other jurisdictions. People v. Sims, 382 Ill. 472, 47 N.E.2d 703; State ex rel. Pearson v. Probate Court of Ramsey County, supra; People v. Chapman, 301 Mich. 584, 4 N.W.2d 18; Annotation 126 A.L.R. 530. It is true that the Legislature could have devised other means of determining who should originate such discretionary proceedings to determine whether a person was a sexual psychopath but it cannot be said that the means that they chose were so arbitrary and unreasonable as to be unconstitutional. Chronicle & Gazette Pub. Co. v. Attorney General, 94 N.H. 148, 48 A.2d 478, 168 A.L.R. 879.

In this state the care, treatment and indeterminate commitment of persons who are insane, mentally deranged, emotionally or mentally ill has long been considered a civil rather than a criminal proceeding. 'The manifest objects of the statute [R.L. c. 17] are to afford a summary mode of protecting society from the violence of insane, dangerous persons, and place them in a situation favorable to their cure.' Merrimack County v. Concord, 39 N.H. 213, 216. Such commitment is not regarded as a sentence or punishment. State v. Johnson, 96 N.H. 4, 6, 69 A.2d 515; In re Kemmerer, 309 Mich. 313, 15 N.W.2d 652. The act now under attack provides for care, treatment, segregation and rehabilitation and section 1 specifically calls for 'a civil commitment.' The objectives of the act are remedial, therapeutic and preventive, 36 A.B.A.J. 665 (1950). The act seeks to protect society as well as benefit the person involved within the framework of a special statutory method which is civil rather than criminal and which attempts to cure and prevent rather than punish. 25 Ind.L.J. 186 (1950). We know of no court that has declared the civil adjudication of sex deviates to be unconstitutional and none has been called to our attention. The validity of such statutes has been uniformly sustained. The two most recent cases are State ex rel. Sweezer v. Green, Mo.Sup. 232 S.W.2d 897 and Malone v. Overholzer, D.C., 93 F.Supp. 647. This has not prevented criticism that the reasoning of these cases 'is founded in a technical legalism of the most vicious sort.' N. J. Commission for the Investigation of the Habitual Sex Offender 16 (Feb. 1, 1950). As a matter of law this criticism is not accepted; as a matter of policy and practical operation of the statute, it will be hereinafter considered. For the reasons already stated the act is not invalid as imposing cruel and unusual punishment or retrospective punishment.

The act is said to be invalid as applied to the defendant because the defendant's commitment is based on activities prior to the passage of the act. Under the mandatory inquiry for certain serious sex felonies, section 3 I, the 'statute is prospective in its operation and suspends criminal trials after an arrest only when the statutory machinery has had its full operation.' State v. Desilets, 96 N.H. 245, 246, 73 A.2d 800, 801. The discretionary inquiry under which the defendant was committed, section 3 II is not retrospective merely because it considers the past history of the person...