State v. Superior Court of King County

• Decision Date: 05 January 1907
• Parties: STATE ex rel. MACKINTOSH, Pros. Atty., v. SUPERIOR COURT OF KING COUNTY.
• Court: Washington Supreme Court

88 P. 207

45 Wash. 248

STATE ex rel. MACKINTOSH, Pros. Atty., v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

January 5, 1907

Application by the state, on the relation of Kenneth Mackintosh, for an original writ of prohibition to prevent the superior court of King county, and Hon. A. W. Frater, as judge thereof, from signing an order adjudging one Maud Creffield and another to be insane, and directing their deportation to their respective homes in the state of Oregon. Writ issued prohibiting deportation; otherwise, the writ denied.

Kenneth Mackintosh and John F. Miller, for relator.

W. A Holzheimer, Baxter & Wilson, A. E. Clark, Anthony M. Arntson and Walker & Munn, for respondent.

CROW J.

This is an application for an original writ of prohibition to prevent the superior court of King county, and Hon. A. W. Frater, as one of the judges thereof, from signing an order adjudging one Maud Creffield and one Esther Mitchell to be insane, and directing their deportation to their respective homes in the state of Oregon. Although not disclosed by the record, the following facts, stated on the argument by counsel for the relator and admitted as true by counsel for the respondent will materially aid in an understanding of the situation: One Joshua Creffield, then the husband of the above-mentioned Maud Creffield, was shot and instantly killed upon the streets of Seattle by one George Mitchell. The latter was apprehended, and, upon an information charging him with murder, was tried and acquitted on the defense of insanity. A few days thereafter, his own sister, the above-mentioned Esther Mitchell, shot and instantly killed him. The record shows that afterwards, on July 18, 1906, Kenneth Mackintosh the relator herein, as prosecuting attorney of King county, by information charged Esther Mitchell and Maud Creffield with the crime of murder; that they were immediately arrested, and have ever since been confined in the jail of King county; that, being arraigned, they pleaded not guilty, and by their counsel demanded separate trials; that the case of Esther Mitchell was set for trial on September 24, 1906; that, after such setting and on September 10, 1906, while Esther Mitchell and Maud Creffield were in jail, one Frank Hurt filed and presented to the respondent A. W. Frater affidavits setting forth that Maud Creffield and Esther Mitchell were then insane, and praying that they be taken before the respondent for examination; that the relator, as prosecuting attorney of King county, objected to the filing of the affidavits and application, and also to the appointment of any commission to examine as to the sanity of the prisoners; that these objections being overruled, and no jury having been demanded, a lunacy commission, consisting of three licensed physicians, was appointed; that the respondent directed the commission to make a full and complete investigation, and to permit the prosecuting attorney or his deputy to be present and offer any suggestions, or present such evidence as he might desire; that the hearing and examination conducted by the commissioners extended over a period of several days, during all of which time the prosecuting attorney or his deputy was present, except when private physical examinations of the women were made, and while the matron of the jail was examined on delicate questions as to sexual symptoms and conditions of the women, and while two physicians testified, they having declined to give their evidence in public, the same being of a confidential, privileged, and private nature; that, during a portion of the time, the examination was conducted in the judge's chambers, while he was attending to other public business in the adjoining courtroom, he coming into his chambers from time to time; that the commission, after completing the examination, reported in writing to the respondent that both of the women were then insane, having that form of insanity commonly classified as 'paranoia,' which has its origin in structural defects of the nervous system; that each of them had homicidal, suicidal, and incendiary tendencies; and that it was dangerous for them to be at large. Thereupon the respondent judge announced that he would enter a decree adjudging them to be insane, and directing the sheriff to deport them to Oregon, the state of which they were residents, but that he would defer signing or entering such order until the prosecuting attorney had ample time to apply to this court for a writ of prohibition, or take such other steps as to him might seem advisable. Shortly thereafter this application was made. The respondent Frater, by way of return, has interposed a motion to quash a demurrer, and an answer. As to the material facts involved there is no particular dispute, the controlling issues being those of law.

Although strong reasons, based upon propriety, decency, and public policy, commend the action of the commission in taking the evidence of the matron and two physicians and in conducting the physical examination of the women in private, we are not called upon at this time to determine whether such proceedings were erroneous. As to said matters and others affecting methods of procedure of which the relator now complains, the record fails to disclose that he made any objections, or took exceptions. In the absence of exceptions, such alleged irregularities, even if erroneous, could not be reviewed on appeal, or by certiorari. In this proceeding they could in no event be reviewed or corrected, even had exceptions been taken. The function of a writ of prohibition is to arrest proceedings which are without, or in excess of, jurisdiction, and not to review errors in matters of procedure where jurisdiction exists. Respondent contends that, when in good faith an affidavit has been filed alleging that a defendant charged with a capital offense is insane, and when it appears to the court that there are reasonable indications of probable insanity, it is within the power of the court to determine the issue of the sanity of the accused before putting him on trial for his life; in other words, that the court may first determine whether such defendant is insane at the then present time. We think this position is well taken, and that the court is possessed of the inherent power and jurisdiction to conduct such inquiry without regard to statutory authority therefor. The law on this subject is tersely stated in 22 Cyc., at page 1213, in the following words: 'At common law, and in some jurisdictions by express statutory provisions, if a person is insane when arraigned for a crime, he cannot be required to plead or to be tried, whether he was insane when he committed the act or not; but the court, provided there are indications or a showing of probable insanity, should determine such issue, either itself or by a jury or commission, according to the statute or practice, and if he is found to be insane, remand him to jail, or, when authorized by statute, commit him to an asylum or hospital until his recovery. So also if the accused becomes insane during the trial, the proceeding must stop; and if he becomes insane after conviction, judgment cannot be given or sentence pronounced so long as he is in such condition; nor can he be executed if he becomes insane after judgment and sentence.' The foregoing text is well sustained by many English and American cases cited in the notes.

In this instance the respondent, in the exercise of his inherent powers as a judge, proceeded himself and by a commission to determine the sanity or insanity of these women, and in the procedure adopted endeavored to comply with the provisions of section 2660, Ballinger's Ann. Codes & St. Knowingly placing an insane person on trial for a crime punishable by death is a precedure not to be tolerated by the courts of any civilized nation. The fifth and fourteenth amendments to the Constitution of the United States, and section 3 of article 1 of the Constitution of this state, provide that no person shall be deprived of life, liberty, or property without due process of law. Murder in the first degree is punishable by death. If a person while insane were to be tried and convicted upon a charge of murder, and afterwards executed, would it be contended that he had been deprived of his life by due process of law? These two women were, or they were not, insane at the time of the filing of the affidavits. The respondent doubtless regarded the indications of their insanity as sufficient to restrain him from placing them on trial for their lives, until their then present mental condition could be ascertained. A person should certainly be in possession of his mental faculties when upon trial for his life. Mr. Carr, in his work on the Suggestion of Insanity in Criminal Cases and the Trial of the Collateral Issue, at page 44, in note 1, says: 'The Constitution of the United States of 1787 provides (Amend. art. 5) that no person shall be deprived of life, liberty, or property without due process of law; and the Constitution of Pennsylvania, both in 1790 (article 9) and in that of 1874 (article 1), declared that the accused cannot be deprived of his life, liberty, or property without the judgment of his peers or the law of the land, and it may be said the provisions as to trials for crimes, and the rights of defendants in criminal cases, indicate that they contemplated the common-law rule that it was the right of a prisoner not to be tried if he were insane. Sanity of the prisoner may be said to be the postulate of such constitutional provisions. Moreover, the two phrases, 'the law of the land' and 'due process of law,' are synonymous, and their meaning is that such principles in the administration of law as were in force under the common law in...