State ex rel. Kirks v. Allen

• Decision Date: 02 February 1953
• Docket Number: No. 21865,21865
• Citation: 255 S.W.2d 144
• Parties: STATE ex rel. KIRKS v. ALLEN.
• Court: Missouri Court of Appeals

Page 144

255 S.W.2d 144

STATE ex rel. KIRKS v. ALLEN.

No. 21865.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1953.

H. K. West, Brookfield, for appellant.

J. E. Taylor, Atty. Gen. and Gilbert Lamb, Asst. Atty. Gen., for respondent.

BOUR, Commissioner.

This is a proceeding in mandamus wherein relator Kenneth Kirks seeks to compel respondent Walter Allen, as prosecuting attorney of Linn County, to file a petition in the circuit court of said county, charging relator with being a criminal sexual psychopath within the meaning of the Act providing for the detention and treatment of criminal sexual psychopaths, sections 202.700-202.770 RSMo 1949, V.A.M.S., and praying that a hearing be held to determine whether relator is such a psychopath. An alternative writ was issued to which a return was filed, and relator replied. After a trial the circuit court quashed the alternative writ and refused a peremptory writ. From such judgment relator appealed to the Supreme Court, and that court has transferred the cause to this court on jurisdictional grounds. Mo.Sup., 250 S.W.2d 348.

We deem it advisable to summarize certain provisions of the above-mentioned act before stating the facts in this case. The Act defines a 'criminal sexual psychopath' and provides that when any person is charged with a criminal offense and it shall appear to the prosecuting attorney that such person is a criminal sexual psychopath the prosecuting attorney shall file in the pending criminal proceeding a petition 'setting forth facts tending to show that the person named is a criminal sexual psychopath.' The act further provides that when any reputable person having knowledge that an individual so charged is a criminal sexual psychopath as defined in the Act, or that such individual has committed an act or acts which indicate that he may be a criminal sexual psychopath, and so informs the prosecuting attorney of the county where the acts were committed, and the prosecuting attorney is satisfied that the allegations have merit, are based on actual knowledge and are capable of proof, then he shall prepare and file in the proper court a petition as provided in the Act. It provides for the service of the petition upon the person named, and for a hearing to determine whether such person should be medically examined; that if, upon such hearing, prima facie proof of criminal propensities to the commission of sex offenses be made, the court shall appoint qualified medical examiners to examine the person charged. The Act provides that under stated conditions the court shall dismiss the petition; that under other stated conditions the court shall order that a hearing be held on the petition; and that if the person is found to be a criminal sexual psychopath, the court may commit him to the State Hospital at Fulton for treatment or may order such person to be tried upon the criminal charges against him. The Act sets out the conditions of his release from such detention after treatment, and declares that a finding of criminal sexual psychopathy under the Act shall not constitute a defense in any criminal action. Certain provisions are set forth in full below.

The record shows that respondent is the prosecuting attorney of Linn County, and that this proceeding in mandamus was instituted in the circuit court of Linn County on May 16, 1951. Some time prior to that date relator was charged in said court with two offenses: namely, a charge of assault with intent to kill with malice aforethought, and a charge of carnal knowledge. He is awaiting trial on those charges. It appears from the pleadings and from what is entitled an 'Agreed Statement of Facts' filed in the trial court, that relator's attorney delivered an affidavit and two medical reports 'to the acting prosecuting attorney, C. B. Burns, before January 1, 1951, and were by him delivered to the respondent about January 1, 1951, as part of the files of the office of the prosecuting attorney of Linn County.'

The affidavit was made by relator's father, M. F. Kirks, on September 1, 1950. The affiant stated that relator had confessed to ravishing a girl about 12 or 13 years of age and had confessed that he had intercourse with a child 10 years of age in the State of Iowa; that relator had been subject to mental and emotional disturbances for many years; that he had received numerous injuries to his head; that he had attempted suicide; that he was a minister by profession and his acts were not normal; that 'at the time of this alleged offense with which he now stands charged,' he made 'no effort to hide his identity'; that his actions indicated that he was a criminal sexual psychopath and should be examined as provided for in the Criminal Sexual Psychopathic Act.

One of the medical reports delivered to respondent was signed by Dr. Edgar W. Johnson, Jr., of Kansas City, Missouri, and the other report was signed by Dr. Roy R. Haley of Brookfield, Missouri.

The report of Dr. Johnson states that he examined relator on October 17, 1950; that he found no evidence of increased intercranial pressures, and the examination did not reveal any hallucinations or delusions. The report further states that relator readily admitted 'the incidents outlined in his statement concerning sexual attacks especially the one involving the 14 year old girl, which attack occurred prior to his apprehension and confinement'; that according to the patient he had several episodes in recent months which he was unable to recall; that he admitted he had contemplated suicide and had made several unsuccessful attempts; that he gave a history of having had several severe head injures during childhood and adult life; that he also stated he had had severe headaches since his confinement, but these headaches almost disappeared following a self-inflicted head injury in his cell. The report further stated: 'In summary I believe this boy could best be described as follows: 1. Marked Constitutional adequacy. 2. Suicidal. 3. Epileptiform attacks. 4. Sexual psychopathic. In my opinion this condition may or may not be related to his frequent head injuries. There is no organic evidence of any neurological disorder. I believe this boy could have another attack at any time, during which he might repeat criminal sexual attacks. In my opinion he should be confined to a mental institution.'

The report of Dr. Roy R. Haley shows that he examined relator on July 7, 1950. The report is in longhand and most of it is illegible. Counsel for relator says that the words 'Sexual Psychopath, Potential Suicide' are clearly legible. However, we can read the following: 'Complains of severe headache * * * Saw him in jail * * * Heart, lungs, reflexes, eyes normal * * * No abnormal abdominal findings * * * Spine fracture while in tank corps * * * Also bullet wound of scalp * * * Diagnosis: Sexual phychopath--Potential suicide.'

After alleging certain facts set forth above, relator states in his petition that notwithstanding the filing of said affidavit and medical reports with respondent, the respondent has arbitrarily and capriciously refused to petition the circuit court for a hearing to determine whether relator is a criminal sexual psychopath; that relator believes that he is a sexual psychopath and that such condition has continued for several years and that he needs treatment; and that he has 'no other or different remedy, either legal or equitable, than to seek the process of this court by mandamus to require and direct respondent to take action and file a petition as provided by law for an inquiry into the psychopathic condition of relator * * *.' Copies of the affidavit of relator's father and the two medical reports were attached to the petition as exhibits.

After certain admissions, respondent alleged in his return that he had examined the affidavit and the two medical reports 'and was not satisfied that the allegations in said documents had merit, nor was said respondent satisfied that the allegations in said documents were based on actual knowledge or were capable of proof'; that 'after due deliberation and careful examination of the documents and investigation as to relator's habits and practices prior to his alleged offenses, as well as relator's demeanor while incarcerated awaiting trial, this respondent exercised his discretion as provided in section 202.710 RSMo 1949, V.A.M.S., and decided to prosecute this relator under the criminal laws of the State for the above mentioned offenses; and that this respondent verily believes that the relator is not a criminal sexual psychopath within the meaning of the Missouri law.' Respondent denied that he acted arbitrarily or capriciously in refusing to file said petition and alleged that he acted in good faith and in accordance with his oath of office...