State ex rel. Savery v. Criminal Court of Marion County, Ind., Div. No. 1

• Decision Date: 18 November 1955
• Docket Number: No. 29329,R,No. 1,1,29329
• Citation: 130 N.E.2d 128,234 Ind. 632
• Parties: STATE of Indiana on relation of Paul Walcott SAVERY alias Robert L. Dennison alias Roger Donovan, Relator, v. CRIMINAL COURT OF MARION COUNTY, INDIANA, DIV. NO. 1 and Scott A. McDonald, as regular Judge of Marion County, Criminal Court, Div.espondent.
• Court: Indiana Supreme Court

Page 128

130 N.E.2d 128

234 Ind. 632

STATE of Indiana on relation of Paul Walcott SAVERY alias Robert L. Dennison alias Roger Donovan, Relator, v. CRIMINAL COURT OF MARION COUNTY, INDIANA, DIV. NO. 1 and Scott A. McDonald, as regular Judge of Marion County, Criminal Court, Div. No. 1, Respondent.

No. 29329.

Supreme Court of Indiana.

Nov. 18, 1955.

Cecil A. Taylor, Charles W. Symmes, Indianapolis, for appellant.

Judge Scott A. McDonald, Indianapolis, pro se.

ARTERBURN, Judge.

This is an original action by the relator, Paul Walcott Savery, asking for a writ of mandate and prohibition against the Judge of the Marion County Criminal Court, Division No. 1, to compel the court to proceed under Acts 1949, ch. 124, § 1, p. 328, being § 9-3401 Burns' 1942 Repl. 1953 Cum.Supp., for the determination and adjudication of the relator as a criminal sexual psychopathic person.

On March 31, 1955 the relator was charged by affidavit in two counts with the offense of robbery and physical injury while in the commission of robbery in the Marion County Criminal Court, Division No. 1. After arraignment the relator pleaded not guilty and also filed a plea of insanity by his counsel. Physicians were appointed under the provisions of the statute for an examination as to his sanity, Acts 1913, ch. 298, § 2, p. 774; 1927, ch. 102, § 1, p. 268, being § 9-1702 Burns' 1942 Replacement, and they filed their report accordingly. On the 26th day of August the relator's counsel filed a verified application with statements of physicians in support of same, requesting the court to hold a hearing for the purpose of declaring the relator a criminal sexual psychopathic person. The court, as shown by the record, overruled this request and denied the petition. It is this action of which the relator complains.

The respondent Judge contends that under the statute in question although the proceedings are mandatory when requested by the prosecuting attorney, they are discretionary with the court when requested on behalf of the defendant in a criminal case. The act with which we are concerned reads in part as follows:

'Any person over the age of sixteen (16) years who is suffering from a mental disorder and is not insane or feebleminded which mental disorder is coupled with criminal propensities to the commission of sex offenses, is hereby declared to be a criminal sexual psychopathic person.' Acts 1949, ch. 124, § 1, p. 328, being § 9-3401 Burns' 1942 Repl. 1953 Cum.Supp.

Section 9-3403 of the same statute provides that, 'when any person is charged with a criminal offense' or has been convicted of such except murder and certain other crimes, the prosecuting attorney or some one on behalf of the defendant may file a petition for the determination of whether such a person so charged or convicted is a criminal sexual psychopathic person.

Section 9-3404 of the same statute provides in part:

'Upon the filing of such statement by the prosecuting attorney the court shall, or if filed on behalf of the accused may, appoint two (2) physicians to make a personal examination of such alleged criminal sexual psychopathic person who shall file with the court a report in writing of the results of their examination together with their conclusions.' (Our italics.)

The statute thereafter provides in general that upon a hearing if the person so charged is found to be a criminal sexual psychopathic person he shall become the ward of the Indiana Council for Mental Health and be confined or paroled under its supervision; that upon the recovery and discharge of the defendant he may not thereafter be tried upon the offense with which he was originally charged at the time he was committed; and that a finding that he was a criminal sexual psychopathic person shall be a bar to his being tried or convicted of any offense pending against him in the court at the time of the filing of the petition for such determination.

It will be observed from the quoted portions that the definition of a criminal sexual psychopathic person under the Indiana act excludes those who are insane or feebleminded and the proceedings provided therefore are not applicable to those individuals.

The relator takes the position that although the court is given discretionary power to deny the application when made by the defendant, this discretion was abused in this case since the relator made out a prima facie showing by statements of physicians attached to his application. These statements are taken from the report of the same physicians who made the examination under appointment of the court upon the plea of insanity. These statements were to the effect that 'this man must be regarded as and accorded the treatment of a criminal sexual psychopath.'

The act with which we are concerned providing for the examination and determination of whether or not persons charged with crimes are criminal sexual psychopaths, has not as its object the giving to such defendants a new defense similar to that of insanity. Such a proceeding may not be used as of right to avoid punishment by one legally sane and responsible for his acts.

The purpose of the proceedings and confinement under the act is primarily to protect society against such persons regardless of criminal guilt. Courts have upheld analogous proceedings for commitment of drug addicts, inebriates, delinquents, dipsomaniacs and similar persons. Through the entire filed of legislation dealing with this human wreckage of society, there is a pervading feeling that sexual offenders and similar persons, require special treatment since punishment normally is not a deterrent to a repetition of the offense. Institutional treatment offers also better protection to society. Although it is no panacea, it, at least, is a more enlightened approach in search of a better solution of an old social problem. Such proceedings are civil in nature even though they may have their origin or be instituted as a result of criminal proceedings. 25 Indiana L.J. 186.

No question had been raised in this case as to the constitutionality of the act before us. A constitutional question will not be decided, where the cause can be properly disposed of otherwise. It is not necessary to determine that question for a decision in this case. No briefs have been presented on the constitutional issue and until we can have the benefit of a matter fully briefed on both sides we reserve any decision upon such question. Roth v. Local Union No. 1460 of Retail Clerks Union, 1939, 216 Ind. 363, 24 N.E.2d 280; State ex rel. v. Wheaton, 1923, 193 Ind. 30, 138 N.E. 820; Hunt v. State, 1917, 186 Ind. 644, 117 N.E. 856; Department of State Revenue, Inheritance Tax Division v. Estate of Callaway, 1953, 232 Ind. 1, 110 N.E.2d 903.

Minnesota has an act providing for a procedure for confinement of criminal sexual psychopathic persons, the constitutionality of which has been passed upon by the United States Supreme Court. M.S.A. §§ 526.-09-526.11. State of Minnesota ex rel. Pearson v. Probate Court, 1940, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744, 129 A.L.R. 530.

However, the Minnesota act as contrasted with the Indiana act can be construed to classify under its definition such persons in the category of insane persons. The United States Supreme Court therefore reasoned that such proceedings were in the nature of an insanity inquest and not criminal in character.

The state of Michigan also has an act which provides for a procedure for confinement of criminal sexual psychopathic persons, Pub. Acts 1939 Mich, No. 165. Under that act only the state may institute such proceedings and petition for a hearing. The Michigan act provides for a jury trial. It is similar to the Indiana act in respect to the fact that it may be instituted in a criminal proceeding and under it insane and feebleminded persons are excluded from its operation.

The Michigan Supreme Court had held the proceeding to be civil in nature. People v. Chapman, 1942, 301 Mich. 584, 4 N.E.2d 18.

The state of Illinois likewise had an act, S.H.A.Ill. ch. 38, § 820.01 et seq., similar to the Michigan act in which only the prosecuting attorney may petition for a hearing. The court also held that it was not a criminal proceeding but civil in nature. People v. Sims, 1943, 382 Ill. 472, 47 N.E.2d 703.

The state of California also has enacted legislation concerning sexual psychopathic persons involved in crime. The act is very similar to the Indiana act. It provides that any person may file an affidavit and when 'it appears by affidavit to the satisfaction of the court that such person is a sexual psychopath within the meaning of this chapter, the court may adjourn the proceeding or suspend the sentence, as the case may be, and, thereupon proceed as provided by this chapter.' (Our italics.) § 5501 of the West's Ann. Welfare and Institutions Code of Colifornia.

In the case of People v. Barnett, 1946, 27 Cal.2d 649, 166 P.2d 4, the Supreme Court of the state of California held the trial court abused its discretion in refusing to appoint physicians and hold a hearing in conformity with the statute upon the filing of a proper affidavit by the defendant, making out a prima facie case that he was a sexual psychopath. There were no counter-affidavits filed. The criminal offense pending against the defendant at the time was sodomy.

That court, however, considered and distinguished the case of People v. Haley, 1941, 46 Cal.App.2d 618, 116 P.2d 498, wherein the trial court had refused to grant such a petition upon a prima facie showing made in a case where the defendant was charged with kidnapping.

In the latter case the California Appellate Court held that the statute should be interpreted as applicable only to cases where the crime pending against the defendant was a sexual offense, and since kidnapping was not such offense, the defendant could claim no right to a hearing under the act.

The section in the act providing for a hearing 'when any person...