Tew, In re, No. 59

• Decision Date: 15 March 1972
• Docket Number: No. 59
• Parties: In the Matter of John J. TEW, Jr.
• Court: North Carolina Supreme Court

Page 13

187 S.E.2d 13

280 N.C. 612

In the Matter of John J. TEW, Jr.

No. 59.

Supreme Court of North Carolina.

March 15, 1972.

Robert Morgan, Atty. Gen., and G. Eugene Boyce, Raleigh, Sp. Counsel, for the State.

Yarborough, Blanchard, Tucker & Denson by Charles F. Blanchard and Irvin B. Tucker, Jr., Raleigh, for petitioner appellant.

SHARP, Justice:

The one question presented by this appeal is the validity of the last sentence of G.S. § 122--86, italicized below. In whole, the section provides:

'Persons acquitted of crime on account of mental illness; how discharged from hospital.--No person acquitted of a capital felony on the ground of mental illness, and committed to the hospital designated in § 122--83 shall be discharged therefrom unless an act authorizing his discharge be passed by the General Assembly. No person acquitted of a crime of a less degree than a capital felony and committed to the hospital designated in § 122--83 shall be discharged therefrom except upon an order from the Governor. No person convicted of a crime, and upon whom judgment was suspended by the judge on account of mental illness, shall be discharged from said hospital except upon the order of the judge of the district or of the judge holding the courts of the district in which he was tried: Provided, that nothing in this section shall be construed to prevent such person so confined in the hospitals designated in § 122--83 from applying to any judge having jurisdiction for a writ of habeas corpus. No judge issuing a writ of habeas corpus upon the application of such person shall order his discharge until the superintendents of the several State hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public.' (Italics ours.)

The percursor of G.S. § 122--86 was N.C. Public Laws ch. 1, § 67 (1899). In pertinent part it provided: 'No person acquitted of a capital felony, on the ground of insanity, and committed to the hospital for the dangerous insane, shall be discharged therefrom unless an act authorizing his discharge be passed by the general assembly. . . .'

In 1904, in In Re Boyett, 136 N.C. 415, 48 S.E. 789, this Court declared the foregoing section invalid as a legislative attempt to infringe upon the Court's constitutional prerogative and duty to issue the writ of habeas corpus upon proper application. The Court said: A person restrained of his liberty cannot be required to 'await the action of the Legislature before he can have the cause thereof inquired into.' Under the constitutional guaranty that the privilege of the writ of habeas corpus shall not be suspended, 'every person restrained of his liberty is entitled to have the cause of such restraint inquired into by a judicial officer. The judicial department of the government cannot by any legislation be deprived of this power or relieved of this duty. It must afford to every citizen a prompt, complete, and adequate remedy by due process for every unlawful injury to his person or property. This is absolutely essential to a constitutional government.' Id. at 423, 48 S.E. at 792. We reaffirm the decision in In Re Boyett, Supra.

Inexplicably, after the decision in Boyett, the legislature of 1905 attempted to cure the constitutional infirmities of Section 67 by re-enacting the invalidated section Ipsissimis verbis with the addition of the following provisions: 'Provided, that nothing in this section shall be construed to prevent such person so confined in the hospitals for the dangerous insane from applying to any judge having jurisdiction for a writ of habeas corpus. No judge, issuing a writ of habeas corpus upon the application of such person, shall order his discharge, until the superintendents of the several state hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public.' Rev. § 4620 (1905).

Needless to say, the re-enactment of invalidated Section 67 did not validate it. The quoted additions, which insignificant alterations in subsequent years, are codified in the last two sentences of G.S. § 122--86. The final sentence clearly purports to prohibit a judge from ordering the discharge of any such person from Dorothea Dix Hospital or Cherry Hospital (the hospitals designated in G.S. § 122--83) 'until the superintendents of the several State hospitals shall certify that they have examined him and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public.' Because of the conclusion we reach, we need not decide whether the statute designates the superintendents of Dorothea Dix Hospital and Cherry Hospital or the superintendents of All the State's mental hospitals.

Tew contends that the certification requirement of G.S. § 122--86 is unconstitutional, and Judge Hall's finding that he is now sane and safe requires his unconditional release. He asserts: (1) to make such certification an indispensable requisite for his release, without providing any recourse in the event a superintendent should arbitrarily or erroneously refuse certification, deprives him of due process of law, N.C.Const. art. I, § 19 (1970), and (2) to prohibit a judge from releasing him on a writ of habeas corpus under any circumstances until the superintendents have issued the required certificates suspends the privilege of the writ of habeas corpus as to him and infringes upon the court's prerogative and duty to issue the writ, N.C. Const. art. I, § 21 (1970). These contentions require serious consideration.

A verdict of not guilty due to insanity constitutes a full acquittal, and one thus acquitted 'is entitled to all the protection and constitutional rights as if acquitted upon any other ground.' In In Re Boyett, Supra at 419, 48 S.E. at 791. See 68 Yale L.J. 293 (1958). However, such a person will be held for an inquisition and, if it is determined that he is then insane, he will be committed to a State hospital. G.S. § 122--84. The commitment of such a person following an acquittal is imposed for the protection of society and the individual confined--not as punishment for crime. Salinger v. Superintendent, 206 Md. 623, 112 A.2d 907 (1955); In Re Clark, 86 Kan. 539, 121 P. 492 (1912). He can be confined in an asylum Only "until his mental health is restored, when he will be entitled to his release, like any other insane person." In Re Boyett, Supra, 136 N.C. at 419, 48 S.E. at 791. See generally, 38 Tex.L.Rev. 849 (1960); 112 U.Pa.L.Rev. 733 (1963--64); 1961 Duke L.J. 481.

In G.S. § 122--86 the legislature clearly manifested its dual purpose to protect the public from the premature release of 'a criminally insane' person and to protect such an individual from himself. The certification requirement also discloses the legislature's conviction that judges are not qualified to make medical findings, and that the institutional psychiatrists are better equipped to determine whether such a person has recovered his sanity and is no longer dangerous. The requirement of examination and certification from each of the Several superintendents divides the responsibility in the event insanity recurs in a petitioner certified to be sane and safe. Presumably multiple certification diminishes the danger that a superintendent, fearful of public censure in the event of a recurrence, will keep a patient confined longer than is reasonably necessary.

The question before us, however, is not whether the purpose and premise upon which the legislature based the statute are sound, but whether it can constitutionally make the court's power to release petitioner upon habeas corpus depend Solely upon certification by the several superintendents that he is now sane and safe. The answer is NO. The power of the court, in a proper case, to discharge a person acquitted of crime because of insanity, cannot be thus circumscribed. Such a condition would deprive the court of any exercise of judicial discretion and nullify its power to release an inmate being illegally detained in a mental hospital. In Re Boyett, Supra. The legislature, in one sentence of its 1905 enactment, recognized the right of a person confined in a mental hospital to apply to a judge for a writ of habeas corpus and, in the next, imposed a condition which would effectively defeat the purpose of the writ.

Psychiatry is not an exact science, and hospital doctors are not infallible. Yet G.S. § 122--86 would not permit a petitioner to establish his restoration to sanity by the testimony of other qualified psychiatrists. It provides no remedy or procedure whatever to determine a charge (such as...