State v. Barnes, 36801

• Decision Date: 12 April 1968
• Docket Number: No. 36801,36801
• Citation: 183 Neb. 85,157 N.W.2d 879
• Parties: STATE of Nebraska, Appellee, v. Delbert BARNES, Appellant.
• Court: Nebraska Supreme Court

Page 879

157 N.W.2d 879

183 Neb. 85

STATE of Nebraska, Appellee, v. Delbert BARNES, Appellant.

No. 36801.

Supreme Court of Nebraska.

April 12, 1968.

Syllabus by the Court

Conflicting opinion testimony of expert witnesses ordinarily raises a question of fact.

Hal Bauer, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

SMITH, Justice.

On a finding of sexual psychopathy defendant was committed by the district court to Lincoln State Hospital. After a hospitalization of nearly 11 years he petitioned in this proceeding for a writ of habeas corpus. The district court denied relief, and defendant has appealed. The issue is whether his fitness for parole or discharge has been established as a matter of law.

The age of defendant was 61 in March 1956, when he joined in an application for examination under the sexual psychopath law. The joinder was precipitated by two complaints and his desire for medical treatment. Defendant related a history of deviate sexual behavior in indiscriminately fonding girls under age 14. He filed an affidavit concluding as follows:

'* * * affiant has for a number of years and particularly since 1939 followed a continuous and habitual course of * * * abnormal sexual behavior * * * affiant lacks the power to control his sexual impulses, and * * * his desires are uncontrolled and uncontrollable.'

Two physicians having found defendant to be a sexual psychopath, the court entered the commitment order on April 23, 1956. A physician examining defendant at the hospital that day diagnosed 'sociopathic personality disturbance, sexual deviation.' Four days later Dr. F. M. Swartwood, a general practitioner, reported in part as follows: 'Prognosis: Guarded. Recommendations for treatment: Continued hospitalization with general medical care * * * and discharge as soon as the court will allow it.' In June 1959, the hospital superintendent, Dr. F. L. Spradling, recommended that the district court discharge defendant. No action was taken. In May 1960, the hospital superintendent, Dr. Richard W. Gray, filed an application stating that defendant was a fit subject for discharge. The court denied the application. In January 1962, Dr. Gray filed another application for discharge of defendant. It was denied. On February 9, 1965, defendant was seen in staff conference which was noted in part as follows:

'The patient * * * lives in an open ward building for Men and has full ground privileges. * * * Evidence of insight has not been profound. The patient tends to be somewhat grandiose. * * * his IQ in the past has been about 130. * * * The patient was previously staffed on May 22, 1956 at which time the diagnosis of sociopathic personality disturbance, sexual deviation was continued; prognosis was considered poor; recommendation--institutional care was advised. The patient had psychiatric testing in May of 1956, January of 1962, December of 1963. * * * It is felt, as of now, no additional recommendations for discharge are advisable.'

Dr. Edwin A. Coats, superintendent of the hospital since January 1965, examined defendant at the staff conference on February 9. He testified that he was not recommending release and that he had ot received a contrary opinion of any psychiatrist.

Dr. Kenneth O. Hubble, a general practioner and resident in psychiatry at the hospital in 1967, made an interim psychiatric reevaluation of defendant. The report, dated February 21, reads in part: 'General mood is one of a certain flavor of excitement and elation. * * * Voice seemed to be normal. No unusual posturing was noted. * * * The patient exhibited an over-productive stream of mental activity in speech * * *. Reaction in responding to questions was trigger-like. * * * In general, * * * emotional reactions seemed within normal limits * * *. It is impossible * * * to say that the patient will or will not have behavior * * * of anti-social degree * * * one could say that in all probability * * * a man of this patient's age, circumstances, and situation, and...