Rowland v. Rogers, 4-5774.

• Decision Date: 19 February 1940
• Docket Number: No. 4-5774.,4-5774.
• Citation: 137 S.W.2d 246
• Parties: ROWLAND, Superintendent State Hospital, v. ROGERS.
• Court: Arkansas Supreme Court

137 S.W.2d 246

ROWLAND, Superintendent State Hospital, v. ROGERS.

No. 4-5774.

Supreme Court of Arkansas.

February 19, 1940.

Appeal from Circuit Court, Pulaski County, Third Division; J. S. Utley, Judge.

Habeas corpus proceeding by Tracy Rogers against Dr. R. E. Rowland, Superintendent of State Hospital, for release of petitioner from state hospital. From a judgment granting the writ, the hospital superintendent appeals.

Affirmed.

Jack Holt, Atty. Gen., and Maupin Cummings, Bernal Seamster, and Suzanne C. Lighton, all of Fayetteville, for appellant.

No brief for appellee.

GRIFFIN SMITH, Chief Justice.

On hearing in circuit court in a proceeding instituted by petition for writ of habeas corpus, appellee was released from State Hospital.¹ The hospital superintendent, to whom the writ was directed, has appealed.

In the order releasing appellee the trial court found that "* * * the county and probate judge did not have jurisdiction of said cause".

The attorney general treats the judgment as a finding that the county court was without jurisdiction to commit insane persons to State Hospital. It is urged that Act 132, page 303, of 1939 confers such authority upon county judges, and that the act is not in conflict with the constitution.² We do not think that question must be determined in order to dispose of the instant case.³

Section 12546 of Pope's Digest provides that any county and probate judge to whom a citizen's affidavit has been presented shall fix a time "* * * as soon thereafter as may be practicable for hearing, and at such time appointed shall proceed to hear the testimony of such competent witnesses as may be produced at such hearing, and, in addition to the testimony of such witnesses, shall cause such insane person to be examined by two reputable, competent and disinterested physicians, such examinations to be made at different times and places separately, who shall severally present to the county judge a sworn statement of the result of such examinations".

Twenty-six questions are set out in the statute, "* * * which shall be included [in the examinations made by the physicians]"

Section 12547 provides that: "If it shall appear to the said county and probate judge, upon his hearing of all the testimony in the case, and from the statement of the physician or physicians, as indicated in [Sec. 12546], that the original statement filed with him by the said citizen is true, he shall so decide, and shall without delay, transmit to the Superintendent of the State Hospital his decision in writing, with copies of the original statement filed with him by said citizen, and of the statement of said physician or physicians, including the interrogatories and answers as heretofore specified".

The petitioner below (appellee here) alleges that after the filing of a purported citizen's statement with the county and probate judge of Clark county, the judge did not set a time for hearing testimony; that testimony of competent witnesses was not received; that the petitioner was not informed that a citizen's statement had been filed; that he was not given a hearing of any kind, "* * * despite the fact that he was on the public streets and his whereabouts were well known at all times".

There is the further allegation that petitioner was not examined by any physician, that no questions were asked him as required by law, either by a physician or anyone else, and "* * * he was not examined in any way so as to satisfy said statute for such commitment".

There was an averment that the county judge failed to hear testimony and make a written decision and transmit a finding to the hospital superintendent.

There is this final allegation: "What actually occurred was that a purported citizen's statement was prepared, blank forms were filled in by two physicians who did not know the condition of petitioner and without any examination whatever of him a warrant of commitment was forthwith issued by the county judge of Clark county, and with said statements was placed in the hands of the sheriff with orders to transport petitioner to State Hospital, without any hearing of testimony and without giving petitioner any opportunity to present any evidence as to his sanity, or any opportunity...