State v. Madary, 35875

Citation178 Neb. 383,133 N.W.2d 583
Decision Date05 March 1965
Docket NumberNo. 35875,35875
PartiesSTATE of Nebraska, Appellee, v. James B. MADARY, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. The statute regarding a criminal sexual psychopathic person is a valid and proper exercise of the police power of the state as a measure of public safety.

2. A proceeding for investigation and for commitment of an alleged sexual psychopath is civil in nature, and the person committed is not confined for commission of a criminal offense.

3. The statute providing for commitment of sexual psychopaths does not deny equal protection of the laws.

4. The sexual psychopath statute providing for investigation and commitment does not deprive the accused of his liberty without due process of law.

5. A statute providing for detention, investigation, and commitment of alleged sexual psychopaths does not place the accused who has been previously convicted of sexual offenses in double jeopardy.

6. In diagnosing a subjective condition the physician must necessarily rely largely upon the history and symptoms described to him by the patient.

7. Section 29-2902, R.S.Supp., 1963, of the sexual psychopath law requires the person against whom the petition is filed to submit to an examination by physicians appointed by the court upon petition by the county attorney without notice or right to be heard at that examination, and such a provision does not violate the constitutional requirement of due process of law.

Richard M. Duxbury, Lincoln, for appellant.

Clarence A. H. Meyer, Atty. Gen., H. G. Hamilton, Asst. Atty. Gen., Lincoln, for appellee.

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

BROWER, Justice.

James B. Madary, hereinafter called the defendant, in a proceeding brought by the State of Nebraska as plaintiff and appellee, sometimes referred to as the State, at a trial had in the district court for Lancaster County, Nebraska, was found to be a sexual psychopath and was committed to the Lincoln State Hospital at Lincoln, Nebraska.

The proceedings were brought under Chapter 29, article 29, of the Reissue Revised Statutes of Nebraska, 1943, as amended, being section 29-2901, R.R.S.1943, section 29-2902, R.S.Supp., 1963, and sections 29-2903 to 29-2907, R.R.S.1943. These statutes provide a special procedure in cases of sexual psychopaths. Section 29-2901, R.R.S.1943, defines a sexual psychopath as follows: 'As used in sections 29-2901 to 29-2907, unless the context otherwise requires, the term sexual psychopath shall mean any person who, by a course of misconduct in sexual matters, has evidenced an utter lack of power to control his sexual impulses and who, as a result, is likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of his uncontrolled and uncontrollable desires.'

Section 29-2903, R.R.S.1943, provides that one adjudged to be a sexual psychopath be committed to a state hospital and makes provision for his care and treatment while so committed.

Section 29-2904, R.R.S.1943, provides among other things that competent evidence of defendant's prior conduct to show sexual psychopathy be received at trial and places the burden of proof to establish the allegations of the complaint beyond a reasonable doubt.

The procedure in the present case leading to the adjudication and commitment closely follows section 29-2902, R.S.Supp., 1963, which is quite long and will not be separately quoted or reviewed as it is not claimed that there was a departure therefrom.

The State filed a petition by the chief deputy county attorney of Lancaster County on April 24, 1964, alleging the defendant to be a sexual psychopath and seeking a determination of that fact. On the same day the trial court ordered the sheriff to hold the defendant is the county jail and appointed two doctors to examine him and report their findings not less than 10 days prior to a hearing to be held May 19, 1964. The defendant filed on April 27, 1964, an application for the appointment of counsel with an attached affidavit of indigency. The motion was sustained and counsel was appointed April 29, 1964. The physicians examined the defendant and made separate reports of their examinations which were served on the defendant's counsel on May 8, 1964.

Trial was had on May 19, 1964. A motion was made by the defendant immediately before trial to dismiss the proceeding and to grant the defendant a separate and preliminary hearing to establish by evidence the matters set forth in his oral motion. The motion was overruled and the case proceeded to trial to the court, a jury being waived by both parties.

Dr. Robert Johnston Stein, a consultant at the Lincoln Veterans' Hospital and Lincoln State Hospital, and Dr. Richard W. Gray, superintendent at the Lincoln State Hospital, both specialists in psychiatry with long experience in mental cases, each testified. Dr. Stein had examined the defendant on May 7, 1964, and Dr. Gray on May 4, 1964, at their respective offices. They each testified that the defendant had given them a long personal history admitting indecent exposures in the past and of being arrested on many occasions because thereof. This commenced in the year 1958 when he was in the military service. Each doctor severally gave his opinion that the defendant evidenced an utter lack of power to control these sexual impulses and that he was likely to inflict injury, pain, or other evil on the objects of his uncontrollable desires. The written findings and report of each doctor were admitted in evidence. Dr. Gray testified when the doctor asked the defendant if he cared to discuss the problem with him, the defendant answered, "Let's talk." There is no evidence of unwillingness to tell his story to either doctor.

On cross-examination each doctor stated that his findings and opinion were based primarily on what the defendant had told him in the examination. Each stated in substance that the defendant was passive in nature, and that it was his opinion that defendant would not attack or hurt anybody. Dr. Stein stated he had seen a list of offenses of the defendant at the county attorney's office before the examination. He considered them part of the record and might have placed some reliance on these records but this would not have changed his subsequent and final diagnosis. Dr. Gray had not seen them until his findings and report had been made.

The defendant testifying on his own behalf stated he was arrested April 22, 1964, in the city of Lincoln and taken to the jail where he remained all night. The next morning he was brought to the county attorney's office and from there he was taken to the county jail where he remained until trial. He was refused permission to call an attorney shortly after going to jail and once or twice thereafter.

On cross-examination he stated he knew counsel had been appointed for him and had discussed the matter with his attorney several times after he was at the doctors. When asked if he was arrested on April 22, 1964, for indecent exposure he said he did not know what for at the time of apprehension but was later so told.

Eugene Robert Henninger, a captain in the Lincoln police department charge of detectives who was called by the defendant, stated that the defendant was arrested at 9:30 p. m., on April 22, 1964, without a warrant by the Lincoln police department. Defendant was arrested because of a complaint of a lady but the witness was not permitted to state the nature of it.

After both parties rested the State was permitted to withdraw its rest and introduce a transcript of the county court of Lancaster County consisting of a complaint filed against the defendant therein on April 14, 1964, which charged him with willfully making an indecent exposure of his person, and a journal of a sentence thereon dated April 17, 1964, containing a finding that the defendant was guilty of the offense charged.

At the conclusion of the trial the defendant was found to be a sexual psychopath resulting in his commitment, and his motion for a new trial having been overruled, he has brought the case to this court by appeal. The assignments of error will be set forth as discussed.

The defendant first assigns error to the trial court in overruling his motion made before trial to dismiss the proceeding and to grant a hearing to establish by evidence the matter set forth therein. In his motion defendant claimed he had been deprived of his rights under the Constitutions of the United States and the State of Nebraska by being denied due process of law, the equal protection of the law, and by being placed in double jeopardy. Further, that the sexual psychopath law unconstitutionally provides for self-incrimination.

The only case of this court touching any of the statutes under consideration is State v. Noll, 171 Neb. 831, 108 N.W.2d 108, in which case the defendant admitted that the procedure for the commitment under these statutes was constitutional and the only question involved was the procedure for the release of the sexual psychopath after conviction. The case is of little assistance in the proceeding before us.

To support his contention defendant cites several cases from the various courts of the United States and from state courts including a decision of this court, State v. O'Kelly, 175 Neb. 798, 124 N.W.2d 211, all involving the violation of constitutional rights of defendants in criminal cases. Defendant contends also his arrest was illegal because it was made without a warrant and that it was in the absence of evidence that a crime was committed and with reasonable grounds to believe that the person arrested committed it. Defendant contends the fruits of the illegal arrest, which in this case he claims consist of the admissions and statements given to the examining physicians, all flowing from the illegal arrest, were obtained in violation of the Fourth Amendment to the United States...

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12 cases
  • State ex rel. Fulton v. Scheetz
    • United States
    • Iowa Supreme Court
    • April 8, 1969
    ...safety. Cullins v. Crouse (10 Cir.), 348 F.2d 887, 889; People v. Piasecki, 333 Mich. 122, 52 N.W.2d 626, 629--630; State v. Madary, 178 Neb. 383, 133 N.W.2d 583, 587, and Annos. 24 A.L.R.2d 350, 354. Admittedly there are those who vigorously dispute the wisdom and propriety of such legisla......
  • Sas v. State of Maryland
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    • U.S. District Court — District of Maryland
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    ...that each of their laws is civil in nature is ample authority to conclude that the Maryland Act is regulatory. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 (1965); People v. Levy, 151 Cal.App.2d 460, 311 P.2d 897 (1957); Miller v. Overholzer, 92 U.S.App.D.C. 110, 206 F.2d 415 (1953); In re......
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    ...the Sexual Sociopath Act for denial of good time credit. Cf. State v. Irwin, 191 Neb. 169, 214 N.W.2d 595 (1974); State v. Madary, 178 Neb. 383, 133 N.W.2d 583, 587 (1965). Similarly, the state courts may hold that since under the Sexual Sociopath Act sentencing for the underlying sexual of......
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48 provisions
  • Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
    • United States
    • Constitution of the State of Nebraska 2016 Edition Article I
    • January 1, 2016
    ...Neb. 544, 134 N.W.2d 84 (1965). Sexual psychopath law did not deprive accused of his liberty without due process of law. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 Sentence of juvenile offender to state penitentiary was not a denial of due process of law. Lingo v. Hann, 161 Neb. 67, 71 N......
  • Neb. Const. art. I § I-3 Due Process of Law; Equal Protection
    • United States
    • Constitution of the State of Nebraska 2019 Edition Article I
    • January 1, 2019
    ...Neb. 544, 134 N.W.2d 84 (1965). Sexual psychopath law did not deprive accused of his liberty without due process of law. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 Sentence of juvenile offender to state penitentiary was not a denial of due process of law. Lingo v. Hann, 161 Neb. 67, 71 N......
  • § I-3. Due Process of Law; Equal Protection
    • United States
    • Constitution of the State of Nebraska 2015 Edition Article I
    • January 1, 2015
    ...Neb. 544, 134 N.W.2d 84 (1965). Sexual psychopath law did not deprive accused of his liberty without due process of law. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 Sentence of juvenile offender to state penitentiary was not a denial of due process of law. Lingo v. Hann, 161 Neb. 67, 71 N......
  • § I-3. Due Process of Law; Equal Protection
    • United States
    • Constitution of the State of Nebraska 2011 Edition Article I
    • January 1, 2011
    ...Neb. 544, 134 N.W.2d 84 (1965). Sexual psychopath law did not deprive accused of his liberty without due process of law. State v. Madary, 178 Neb. 383, 133 N.W.2d 583 Sentence of juvenile offender to state penitentiary was not a denial of due process of law. Lingo v. Hann, 161 Neb. 67, 71 N......
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