State v. English, 44094

Citation198 Kan. 196,424 P.2d 601
Decision Date04 March 1967
Docket NumberNo. 44094,44094
PartiesSTATE of Kansas, Appellee, v. James Francis ENGLISH, Appellant. James Francis ENGLISH, Petitioner, v. John E. ROBINSON, Superintendent, Larned State Hospital, Respondent.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The test of responsibility for crime differs from that of mental competency to stand trial. (Following Van Dusen v. State, 197 Kan. 718, 421 P.2d 197.)

2. It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before the court is required to order an inquiry solely on its own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion. (Following Van Dusen v. State, supra.)

3. The provisions of K.S.A. 62-1534 to 62-1537, incl., concerning the disposition under certain circumstances of persons convicted of crimes pertaining to sex, are humanitarian in purpose and are a valid and proper exercise of the state's police power as a measure of public safety.

4. The application of the provisions of K.S.A. 62-1534 to 62-1537, incl., under certain circumstances set out therein, to persons convicted of crimes pertaining to sex is not an unreasonable classification of such persons amounting to a denial of the equal protection of the law.

5. Commitment, until restored mentally, of a person convicted of a crime pertaining to sex, who is not insane but appears to be mentally ill, to an institution provided for the reception, care, treatment and maintenance of such cases, as provided for in K.S.A. 62-1536 and 62-1537, does not amount to cruel and unusual punishment or deprivation of such person's liberty without due process of law.

Robert T. Cornwell, Wichita, argued the cause and the briefs for petitioner-appellant.

Keith Sanborn, County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., and Richard H. Seaton, Asst. Atty. Gen., were with him on the briefs for appellee and respondent.

Waldo B. Wetmore and Jim Lawing, Wichita, were on the brief for Kansas Civil Liberties Union, amici curiae.

KAUL, Justice.

James Francis English (petitioner-appellant), hereafter referred to as English or appellant, filed a petition for a writ of habeas corpus directly in this court and has also perfected an appeal from a conviction of forcible rape (G.S.1949, 21-424, now K.S.A. 21-424) and commitment to the Larned State Hospital, hereafter referred to as Larned. John E. Robinson, Superintendent of the Larned State Hospital, is deisnated as respondent in the petition for a writ of habeas corpus. He will be referred to hereafter as respondent.

The Kansas Civil Liberties Union was granted leave to file a brief in appellant's behalf as amicus curiae.

The petition for a writ of habeas corpus was docketed with the appeal and the two proceedings are consolidated herein.

The issues raised by appellant in his petition for a writ of habeas corpus and also in his appeal are primarily focused on his conviction by plea of guilty, his commitment to Larned and his continued detention there.

On September 17, 1958, English was arrested and charged with the forcible rape of a Wichita housewife. He was brought before the court of Common Pleas of Wichita and a preliminary hearing was scheduled. On October 13, 1958, with his appointed attorney, English again appeared in the court of Common Pleas, waived preliminary hearing, and was bound over to the district court.

An information was filed and, on October 16, 1958, English and his attorney appeared before the district court, entered a plea of guilty, and made application to the court that English be sent to Larned. The court granted the application and ordered that English be 'committed to the institution at Larned for diagnosis and treatment, and upon treatment be returned to this court for sentence.' In this connection the journal entry provides in part as follows:

'That the defendant be and is hereby committed to the Larned State Hospital at Larned, Kansas, for observation and treatment as provided in Section 62-1534 to 62-1537 of the 1957 Supplement to the 1949 General Statutes of Kansas until the further order of this court, and the Superintendent of this hospital is requested to report in writing to this Court when it appears said defendant has been restored mentally.'

It appears from the record that different interpretations were applied to the court's order of October 16, 1958, as reflected by the subsequent actions, taken by the appellant and the Superintendent of Larned State Hospital, on the one hand and the trial court and the state on the other. As set out in the journal entry, the appellant was committed to Larned for observation and treatment as provided in G.S.1957 Supp., 62-1534 to 62-1537, until the further order of the court. The superintendent was to report when English became mentally restored. The statutes referred to in the journal entry, now K.S.A. 62-1534 to 62-1537, provide as follows:

'That in case of the conviction of any person for any offense against public morals and decency, as relating to crimes pertaining to sex, in which perversion or mental aberration, appears to be or is involved, or where the defendant appears to be mentally ill, the trial judge may, on his own initiative, or on the application of the county attorney, the defendant, or counsel for the defendant, or other person acting for the defendant, defer sentence until the report of a mental examination of the defendant can be secured to guide the judge in determining what disposition shall be made of the defendant.' (62-1534.)

Section 62-1535 gives the trial judge optional authority to refer a defendant to a state hospital for the mental examination and report referred to in 62-1534.

Section 62-1536 provides in part:

'If the report of the examination by the psychiatrist shows that the defendant though not insane is so mentally ill or mentally deficient as to make it advisable for the welfare of the defendant or the protection of the community that he or she be committed to some institution other that the county jail, or the penitentiary, or industrial reformatory, the trial judge act to commit such defendant to any state or county institution provided for the reception, care, treatment and maintenance of such cases or similar mental cases, in lieu of a sentence to a county jail, the penitentiary or the industrial reformatory where required by law, and to direct the detaining of the defendant in such institution until further order of the court. * * *'

Section 62-1536 further provides for the right of an appeal from any order of commitment by the court to any such state or county institution. The statute further provides that such an appeal shall lie in the same manner and with like effect as if sentence to a jail, the penitentiary or the industrial reformatory had been imposed in the case.

Section 62-1537 provides that if, after commitment to any state or county institution, it appears that defendant has been restored mentally, he should be returned to the court where convicted, and be sentenced or paroled as the court deems best under the circumstances.

The statutes above set forth will be referred to collectively hereafter as the 'Sex Offenders Act' or the 'Act.'

Appellant was received at Larned on November 20, 1958. Approximately sixty days later the Superintendent of Larned reported to the trial court as follows:

'We wish to advise that the above named person, who was admitted to this hospital from Sedgwick County on November 20, 1958 as a District Court Case with a charge of Forcible Rape, has been presented before our medical staff.

'The diagnosis of Sociopathic Personality Disturbance, Sexual Deviation and Alcoholic Addiction was confirmed by the staff with the recommendation that he should be returned to the Court. We would appreciate your calling for him at an early date.

'We are enclosing a copy of the staff findings for your information.'

The enclosed staff findings reflect the following:

'* * * The crime for which he was charged was discussed with him.

'* * * He * * * made the impression of not being aware of the seriousness of his offense. * * *

'It was agreed that this patient is competent and able to understand the nature of his actions. Therefore, he should be sent back for further disposition to the referring agency, as having received maximum hospital benefit and being free of psychosis.

'Prognosis: Poor, because of lack of motivation.

'Diagnosis: SOCIOPATHIC PERSONALITY DISTURBANCE, SEXUAL DEVIATION AND ALCOHOLIC ADDICTION.'

Following the report of January 23, 1959, and during a period extending through July 1962, various reports of like tenor and reflecting substantially the same diagnosis were submitted to the trial court by the superintendent and other staff doctors of Larned. The import and significance of the language of the reports were later explained by Dr. Burdzik in his testimony. None of the reports described English as being mentally restored.

The record reflects no action by the trial court on the reports.

In 1964 appellant, through his attorney, filed a motion in the trial court entitled 'Motion for Recall and Adjudication.' Appellant was returned to the trial court and a hearing was had on May 13, 1964. Appellant was represented by the same attorney who had acted as his counsel throughout the entire proceedings, commencing in 1958. Prior to the hearing the court appointed Dr. C. J. Kurth, M.D., psychiatrist, and Dr. Donald W. Smitherman, a clinical psychologist, to examine appellant to determine whether he is sane or insane and whether, though not insane, he is so mentally ill or mentally deficient as to make it advisable for the protection of the community that he be committed to an institution.

At the hearing on May 13, 1964,...

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