*1 Mary Petitioner, v. Moynihan, Higgins, Ex Parte Edward (2d) 410. S. W. F. Hoctor. Emmett One, June Division *2 Higgins Hudson, & petitioner. Waxelman McKittrick,
Boy Attorney-General, Sa/wyers Wm. Orr and Denton Dunn, Attorney-Generals, respondent. Assistant
HYDE, application is an to court for writ of C. This habeas attorneys E. writ, Mary made the corpus. application The unlawfully she of deprived her Moynihan, states Insane superintendent Hospital of the State at Farm No. the writ and ington, issued it is shown re was the Missouri. Hospital superintendent of the State Insane and the turn petitioner copies of and the certified the reply thereto of record pleadings that as stated in these the statement attached to petitioner’s brief: Mary Moynihan,
“A have E. proceeding herein, to incapable managing mind her of'' unsound and own' declared affairs, instituted in Probate' Court County, of St. Louis was 17, 1931, by filing July of an Missouri, on information writ- , Moynihan, husband, J. her as the ing informant, with Micháel Moynihan alleging Mary E. was a that the' said unsound managing her own incapable and affairs and praying mind incapable of unsound to‘adjudge'her cbiirt mind affairs. managing own, her
“A the Sheriff of St. County, issued to Louis summons Hodgdon, had theretofore been Missouri, Sam who elected and Judge qualified acting had as Probate Court of St. Missouri, ordering directing County, Louis said E. Mary County St. Moynihan appear Louis Probate Court on the undergo sanity. day August, 1931, to her 7th July however, 17, 1931, that on at same time appears, “It County of St. Louis served the said sum- Sheriff of the said Mary Moynihan, petitioner said herein, mons on the E. she was then conveyed by County Louis Sheriff and there arrested and St. Asylum Farmington.”
to the State Insane pursuant made following This arrest was order of the July probate court, made 1931:
“Complaint Moynihan having Michael been made to the County Probate of St. Louis Court the above named Mary Moynihan endanger E. is so in her mind disordered far person, others, her own and the and has no guardian, charge any person, is not in the care and that testimony in having regard complained the court heard facts adjudge, of, consider, order decree, Mary does and direct that said Moynihan apprehended, E. restrained and confined in the State Hospital 4, Farmington, Missouri, No. and that the sheriff of this Moynihan county apprehend Mary shall said and deliver her at Hospital the said State No. Farmington, Super- Missouri, to Superintendent intendent hereby thereof and that the said and he is empowered directed confine her until the further order of this court.”
Thereafter, July 20, 1931, following order was also made County County: St. Court of Louis appearing now it “And that the Probate Court County Louis, of St. State Missouri, has filed information writing Mary Moynihan B. is so disordered her mind far *4 endanger person person her as oivn and the and of others, guardian and has no is not in the charge and care or of any person, and now coming the above cause heard, to be and being proven, stated, facts to the by as satisfaction of the court by Court, the Probate it is considered Mary court that the said Moynihan E. is so far disordered in her mind appre- that she be Hospital in the hended, restrained and confined State No. Farm- ington, Missouri. therefore ordered the court that Mary Moynihan admitted, said E. be restrained and confined 4, Farmington, Missouri, Hospital county patient, the State No. as a order this and until further of that the clerk of court this Superintendent make to the of out and transmit said Hospital State copy request No. 4 a'certified this order with the that the said Moynihan Mary E. he institution.” admitted said evidently authority probate court acted under The Sections 498, 499, county Revised Statutes and the court under Sections 8645-9,. Revised Statutes These latter sections were enacted 587-8) evidently (see give county court pp. Laws indigent persons duty caring [See, for found to insane. be Q. R. S. v. O. C. 451 and Redmond & K. Rail-
also, Secs. 721, 126 W. Co., 225 Mo. road petitioner’s day brief: “On the 7th further stated As (probate judge) he had said case for trial August, 1931, called attorney repre- Rasmussen, Martin appointed law, one and Moynihan, E. Mary herein. Immediate- sent the said attorney, having party said neither asked ly appointment of after proceeded try the case, jury, as a jury, sitting for a herein) being (petitioner present.” without the defendant and probate court, as shown judgment record, its as follows: Moynihan Michael filed information of J. this court on “On hearing July, and the as to the day in- the 17th having day, Moynihan E. been and sanity of set this it Mary Moynihan Mary personally E. served with appearing that required inquiry law that an would had on said notice sanity that she was entitled to be as to her and and date by counsel; the court its own motion doth therefore assisted attorney, Rasmussen, represent appoint Martin her in this behalf, also and comes informant. there party giving finds neither the
“The court information party inquired writing, being whose has nor the into jury, therefore, the are inquired or demanded a facts called for into sitting sitting and the court as a having adduced, proofs Mary find that all the evidence and doth said heard incapable managing mind Moynihan is a unsound E. her affairs. “Whereupon, is ordered court in with it accordance Moynihan finding, Mary is a E. of unsound mind that said managing affairs, thereupon her incapable of the court doth guardian Moynihan, Michael appoint estate charge Mary Moynihan, and orders he take E. her of said entering upon his estate, guardian before duties as he $500 benefit of said a bond in sum estate. execute sum, guardian now files his bond aforesaid which “Said approved. duly examined bond is Mary Moynihan having E. day named been above de- “The appearing of unsound the court clared Moynihan presented Mary said evidence court from *5 endanger mind her otvn in her disordered and is so far adjudged ordered, and decreed that others, it is said property of Hospital in confined the State be restrained and Moynihan E. Mary Superintendent thereof is here- Farmington, Missouri, and the 4,No.
1027 Moynihan E. confine empowered Mary the said and directed 4, Missouri, until Farmington, No. further or- Hospital said State of this court.” ders probate judgment August court was on entered
After this Hospital to the State Insane 1931, another commitment had 7, and court, county probate there was by made been issued following order, August further on 1931: 10, court the to the court appearing now Probate “And it Court Louis, has County Missouri, St. State of filed information in Mary Moynihan insane, is and that she writing that E. is a resident county Louis, Missouri, State of and of St. now the above heard, coming stated, being to be facts as proven cause of the court satisfaction is con- so Man-y Moynihan insane, said E. the court is sidered Hospital to be sent to the State proper 4, No. Farm- ington, Missouri. It is therefore ordered the court that Moynihan Mary Hospital E. sent to the State be No. Farm- said undergo Missouri, county thereof ington, treatment as a patient, clerk of court make out and that the to the su- transmit perintendent Hospital No. copy of said State a certified of this Mary request Moynihan the said E. order with be admitted to said institution.”
Mary Moynihan held in E. is now Hospital State Insane 4No. pursuant commitment order. said The contention made proceedings behalf County in her is that the here the St. Louis Mary Moynihan void because Probate Court were was not permitted hearing to be at and because no try This, contended, issues. it is called to is in violation of both Federal and State Constitutions. We have held, where it petitioner law under which a contended the is restrained is corpus unconstitutional, a proper remedy that habeas to test question. parte Karnstrom, that Ex Mo. 595;W. [Ex S. 218 S. parte Lerner, Mo. Ex parte Lucas, 160 218; see, also, 61 W. unconstitutional commitment see. Here, C. no claim is made petitioner is, fact, sane. The contention is that she has not been legally declared insane. It has been ruled that, “although the of an insane illegal, confinment his going large at will dangerous be himself people or to other he will not set corpus, under a writ habeas but will per- detained to legal mit a commitment to secured legal under proceedings.” L. parte Dagley C. Ex [12 (Okla.), 128 Pac. S.) (N. 44 L. A.R. We will, however, note.] determine whether shall be remanded to superintendent asylum under the commitment or returned to proceedings. further *6 claim made on behalf of of the substance 1929, authorizing such Revised Statutes 448 and
that Sections here, sections These had are unconstitutional. were proceedings follows: are as writing, verified the'informant If information 448. “Secton given behalf, and best information on his county person un- idiot, is an lunatic or person its that managing affairs, praying incapable of and mind, and sound had, satisfied inquiry thereinto there that jurisdiction, exercise of its shall cause the facts good cause for the Provided, jury; party if neither into a inquired to be being writing, party i/n nor the whose giving the information in- jury, ór demand a then into call inquired facts jury. sitting proviso as a was added quired into the court [This 1913, p. in 1913. See Laws 94.] jury sitting it be or the court “Section found If subject inquiry is of unsound and jury of the mind
a incapable managing affairs, appoint his or her the court shall guardian person, and estate of such insane a of the (Then provision the State.” be ‘aresident of follows a guardian to public Ap- in case a procedure officer becomes insane. as to the Legislature misgivings that.) had some parently the about says these sections violate the Fifth Petitioner and Fourteenth States, the Constitution of the contending Amendments to United authorizing court to find a insane and appoint guardian property, having a and without deprives without a jury, him the verdict of him of his process without of law. due. Petitioner also violate, they reason, for the same Section 30 contends of Article II Missouri Constitution. Notice is process essential to due Searcy, 167 v. Mo. 67 S. 206; of law. Shanklin v. [Hunt Terry S. W. State Boyce, 275 Mo. ex rel. Holtcamp, v. (2d) However, 51 S. W. “where due notice opportunity hearing for a have been given, presence hearing at the is not essential to process.” due process sec. Nor C. does due require J. of law a [12 987.J by jury, in all even criminal Therefore, cases. “in the any provision contrary absence of Constitutions, State Legislatures may provide the several State for the trial of accused persons jury without a twelve; .before less than may provide jury failure to demand certain cases' shall jury be á waiver of to a trial otherwise existing.” [12 see, 981, J.1207, see, also, p. 1190, 956;. C. sec. 6 R. C. L. sec. 453, see, also, 433-436, secs. pp. Courts of equity have 430-433.] always determined issues fact and ! provisions constitutional relating to-jury apply equitable trial do not G. actions. [35 against Offenses 31, C. L. 159-162, secs. before the triable, law and at common ordinances were municipal jury are not without present Constitution, adoption required our Court [Delaney now. v. Police before be tried 589; City 67 W. of St. Louis City, 167 Mo. of Kansas *7 421; process of 600, as to Hoffmann, 312 280 S. W. due Mo. Von City 666, W. Schefe, 67 S. see, also, v. 167 Mo. of St. Louis law Louis, 1100, City 373, Sup. 194 U. 24 of S. Schefe v. affirmed St. City 676, 654, 167 Fischer, L. Mo. 88 Ed. of St. Louis v. 99 Ct. 872, Rep. 614, Fischer 679, L. A. Am. affirmed 67 S. 64 St. R. City Louis, U, 361, Sup. 673, 194 24 40 L. v. St. Ct. Ed. 1018.] “ Delaney process law’ does This in case: ‘Due court said necessarily simply day by jury. mean trial It a in not means a provided practice cases, involving, court, according to the course, opportunity judgment notice and an be heard before pronounced.” process of Concerning insanity Supreme due in hearings, law 427, Craft, United States in Simon v. 182 Court of the 21 said S.U. 45 Sup. 836, Ct. Ed. 1165: L. process
“The due clause of the 14th Amendment does neces- not by particular sitate that the in proceedings a state court should a mode, only regular proceedings that there shall a course given asserted, opportunity which notice is of the claim and an against afforded to defend it.” [See, also, Sherman, Chaloner v. 455, Sup. 242 136, U. S. 37 61 Ct. L. Ed. White v. White (Tex.), 508, 1918A, 196 S. W. A. L. generally seems to be rather fulfill held that at least to requirement process jury due law “there is right no to a proceedings trial in question person’s to determine the aof insanity, except where, jurisdictions, right as some is conferred 182, 71, 205, statute.” sec. cited; C. and cases 16 R. C. L. [35 23; see, also, 560, 11, 564, sec. 14 R. C. L. sec. Since an insanity case, hearing is a ex Peper civil State Holtcamp, v. rel. 232, 521, 235 Mo. 138 S. W. it would process seem at least that due require of law jury does not that trial, there be whether de not, manded or and we so hold. Petitioner further contends that 448 Sections
Revised Statutes violate Section of Article II, of our present Constitution, which right states: “The by jury, of trial as enjoyed, heretofore shall remain inviolate.” This contention is that insanity hearings jury there must be a trial whether demanded question or not. This presents a apparently which has never been decided in this suggested State. It was in National Board Fry, Mo. S. W. but the court question said “the whether or not a of unsound mind can waive by jury a trial provided by (Laws p. amendment 94), or whether We shall petition. presented not it, raise plaintiff can “A jury provides: questions.” Section also into these go not may record, cases, in courts not criminal or civil trial of for the By prescribed may law.” men, twelve of less than consist majority jury a two-thirds Amendment three- in courts not of record and in all civil cases
render a verdict civil jury a verdict all cases courts may render fourths Peper v. Holt in State ex rel. amendment, record. After 521,W. 138 S. contended camp, right jury wherein the “only to cases 28 applied ’’ in not law; could affect that the amendment at common existed given by trial was statute inquiry wherein the to a that, insanity case; proceeding civil only; that an proceedings. in such therefore, a verdict was not valid three-fourths case; insanity inquiry was a civil however, held that This required; jury only a three-fourths verdict was when tried enjoyed,” only “as heretofore were not the words limited *8 they up juries; meant “before and to the time common-law adopted;” that “whatever status Constitution was was the the right adoption of of 1875 at the time the the Constitution of of that Many in referred to instrument.” of was the status decisions although using language, approve not exact seem this this 317; Bockstruck, 335, 136 38 W. v. Mo. S. the same rule. [State 791; 385, v. 138 39 Tamm, Lake Ice Co. Mo. W. Creve Coeur S. 310, 691; Tinsley Kemry, 170 Mo. 70 S. W. Eckrich v. v. St. Louis 621, 755; 75 S. Co., Berry 176 Mo. W. v. St. & San Transit Louis Hy 223 122 Ry. Co., 358, 1032, 1043; S. W. Francisco Mo. Peniston v. 532; City Brick 234 138 S. Co., Mo. v. draulic Press W. Kansas 1103; Smith, Pump 238 141 S. Johnston v. Star Mo. Bucket 1143; 202 Co., 274 Mo. S. W. v. 306 Co., Bates Comstock Realty McKinley, v. Mo. 278 641; Mo. 267 S. W. Hickox 311 S. W. 484, 297 Reynolds, 317 Renshaw v. S. W. Louis St. Smith, (2d) 30 W. Company 325 Mo. In Ice v. v. Tamm, referring supra, long this court held that the statute for ac because, not 28 counts to referees did violate Section of Article II 1865 prohibited “ike Constitutions neither tbe courts of referring from cases the party,” without consent of either and that adopted “they when the 1875 was people Constitution of rati provision jury enjoyed as to fied the it had been previously trial adopted thereto; say, they it with already that is the construction City placed upon it.” In Smith, supra, Kansas this court said: legal proceedings “Parties to deprived, cannot be without their con sent, jury, composed law, a of trial as at common of issue necessary of fact for trial of which it was to call a .jury ivhen the adopted.” Also, Constitution this State in St. Louis v. first eases, Hickox this quoting Bates from the supra, Smith, exists, it is virtue jury right trial “If said: further 1820 or time, it be that of whether in force at the the Constitution law of the common merely guaranteed the continuance 1865, which preserves does right but right the Constitution and that therefore, undoubtedly, construction, proper rule extend.” right by jury, preserves the Constitution of is that statutes, right territorial from common or the as that came law guaranteed preced- under the exactly two the same status ing Constitutions, particular statutory It is: is not method guaranteed, procedure in 1875 which procedure in of which the force Legislature previous adopt was authorized to under only Legislature Likewise, prevents adopt- from Constitutions. limiting ing right pre- which procedure of trial it was adopting rights provision in the bill vented from previous two Constitutions. principles
With let examine claim of these us insanity valid determination of the fact of can be only by jury, not, one, made whether demanded or and that whose being inquired into, jury inquiry. Un cannot waive such der rights preserved the above rule determination II Constitution, inquire Article we must as to the status right cases, to a not, whether in such be demanded or up fore the time adopted. Constitution was Mis souri has had three adopted Constitutions. Our first Constitution was in 1820 and remained in stated, force until 1865. Declara Bights tion of XIII, contained Article as follows: “Section That the by jury of trial shall remain inviolate.” The Con stitution of exactly force until contained same *9 words, I, What, then, right Article 17. jury was trial to insanity in hearings adoption original before and after the of our Constitution? Assembly The General Territory Missouri of in adopted procedure a cases, code of in such which remained in force until after the Constitution adopted of was when Mis souri was admitted into state, the Union as provided: a which Upon
“1. writing being given information in to the circuit any person county applica- is of unsound tion may inquired into, the fact duty be it shall be the of such inquire court to into the fact either jury otherwise, or and if it is found person that such is of unsound mind and of incapable prudently managing* affairs, may appoint the said a court guardian over person, person of and effects such of un- sound mind.” Laws, Chap. 191, [Missouri Territorial p. Acts of General Assembly Territory of 1817, p. Missouri This Territorial Act was carried over into the Bevision of adoption of the Con Missouri, after the the State
the statutes of. required be writing to was stitution, except that the information in each established probate which then given court was 269-270, 5-6), of to the 3825, instead pp. secs. (Yol. S. county 1‘ court shall provided that the further The new statute circuit court. brought alleged before them insane be to be to cause the so if be inquire otherwise and or jury into the facts and shall incapable prudent is of unsound mind found that fit appoint shall some managing his her own affairs the court ly or 1825, p. E. S. guardian guardians.” or persons as [Yol. or statutory code comprehensive In 1835 new more a sec. 1.] subject persons insane and the covering the whole was enacted abolished and management estates. Probate courts were of their persons of un probate jurisdiction, including whole matter already county courts estab mind was transferred to the sound Y, Constitution of under 1 and Article lished Sections 155-6, p. sec. The new pp. 9-15, E. S. sees. [See inquired cause into court “shall be statute stated that the facts alleged jury” persons be unsound determine Legislature Perhaps the con p. mind. [E. 2.J county which jury inquiry more a sidered a essential in largely body, specialized an for handl administrative than ing any insanity inquiry was not mat rate, matters. At jury right, ter which trial a matter whether demanded not, right adopted. when our first Constitution was Nor did that during years provid exist the first fifteen under that Constitution ing jury right “that shall If remain inviolate.” Legislature “by inquiry jury had provide for such Eights otherwise” courts under Bill of the first Constitution, power present does it have the under Constitu may provide inquiry jury tion without the court if no jury provision “by jury otherwise” demanded? The proceed least means no is demanded the court without one, which is all our statute authorizes. insanity hearing compared
An criminal is not to to a trial. entirely The purpose different. wrong. suffering of no
is accused crime or He is from a disease of the mind or protection nerves and he as much as one needs from its It is deprive effects. him of his property not intended to but to preserving afford a means of it. deprive It is not intended him of punishment protection for his own pro and the knowingly tection of others from acts which he would not *10 commit. rights It is preserve intended to of all his of both and prop erty any early he is period until able to them. Eng exercise At custody lish history the of the the of patriae and came under the parens Crown as became vested 162; 14 Chancellor, sec. R. C. jurisdiction C. J. of the Lord Insanity, development The of 4; 40, sec. L. sec. Buswell on by in State ex early chancery procedure was reviewed Guinotte, 257 Mo. 165 S. W. as follows: rel. v. Paxton authority Chancellor “Subsequently given was to the Lord inquire idiocy or issue or commission to as to the fact the writ by suggesting the lunacy, petition was procedure and the method of lunacy. [Ibid.; Brown, 1 Abb. Pr. Re 109.] supposed to the ordinary upon
“It was the writ forfeiture king political crown, proceeding' and the was in behalf of the Brevium, Fitzherbert, people. [Ibid.; father his Natura De give king “As mat the means devised to solemn necessary sovereign record, could devest ter it was before the Moore, 208, 212, Bl. 125 L. Phillips title. Com. 100 U. S. [3 603, 604; Diet., Ed. Anderson Office title Found.] king’s rights “It upon was used to establish the which fact depended, of an alien who hold until his case could land alienage authoritatively public officer, upon was established inquest government. held at the instance of the Whether the basis infancy of action alienage, proceeding Was otherwise, or or public behalf of represented king. [Ibid.] inquisition an inquiry made by a sheriff, “The before a coroner, commissioners government officer, escheator or other specially appointed, concerning sovereign any matter entitled possession goods tenements, chattels, of lands or reason escheat, forfeiture, of an Prerog. 246, idiocy [Chitty, and the like. Diet, 55; Rapalje Inquest Staunf. & L. L. title Office.] law “Thus England, came us from after the Revolu- tion custody the care and persons mind pos- unsound and the session belonged estates, king control of their which had part as a prerogatives, people, became vested who ’’ early act it confided to the chancellor and afterward to the courts. Under laws England states, our most of when person’s sanity inquired into, required “upon that either original issue, therefrom, trial of the on appeal may a-s right, a matter jury upon obtain the of a verdict the facts produced.” evidence Insanity, p. 35, [Buswell English statutes enacted adoption after our first Constitution provided: “XLI. Where the inquiry lunatic demands an before
jury, the Lord Chancellor intrusted shall as aforesaid his order inquiry direct the return satisfied, by of a per- unless he sonal alleged lunatic, examination mentally that he is not *11 jury; a inquiry before an a wish for express to form and
competent may, he shall where as aforesaid Chancellor intrusted and the Lord inquiry, and petition for necessary, presentation after deem it alleged examination, require lunatic the personal purpose for the may appoint. he place as time and him at such convenient to attend ‘‘ inquiry be- demand alleged XLII. does not Where the lunatic is satis- as aforesaid jury, intrusted a the Lord Chancellor fore or mentally com- not him that he is personal examination of fied appears behalf, and it express a in that petent form and wish aforesaid, upon consideration of Lord Chancellor intrusted the inquiry, and of petition for him on the evidence adduced before the him, they to be case, before so far as are the circumstances jury, unnecessary inquiry be before a inexpedient should or that the inquiry direct re- accordingly does not in his for and he order Com- jury, shall, by of their General turn a the blasters virtue then inquiry; per- without a mission, and under such order for evidence, upon sonally alleged lunatic, such and take examine the they may otherwise, information, think and call for such oath or may direct, in order fit as aforesaid or Lord Chancellor intrusted mind, alleged to ascertain whether or is of unsound not the lunatic Regulation certify finding [Lunacy Acts, shall their thereon.” see, & 26 Cap. XL-L; provisions also, & Yict. later Cap. 96, App. L. 4 Ch. 8-12; Crompe, Yict. secs. In re proceeding case, insanity This in the Guinotte held that an not dismissed it could the informant who commenced without following probate court, making consent of observations concerning the State’s interest such matters: parties are inquest
“Who in an lunático interest de under our Manifestly (a) public large, may statute? at suf- vagaries fer person property dangerous mania or from the or alleged individual to be of unsound and for that such person, dissipation charge property, may his not become upon (b) public purse, person whose is mind under suspicion, crazy that he not suffer from the person, property custody detention of his of another.” However, though insanity proceeding primarily even for the person suspected being insane, depriv- benefit of the nevertheless ing his freedom as he fit his to do sees with property putting stigma him under the irrationalism is such a serious matter be, there should whose inquired safeguard. into, every proper As said Searcy cases, declaring and Shanklin unconstitutional authorizing hearings statute such without notice: raving through maniac, “If appear attorney he be a he can appointed friends, proper person guardian, and see that a bis given person. proper care is to his and to his In ad- dition, really all, what was not and without adjudged insane and confined an asylum, notice was and the management ? property given to another In contingency *12 manifest, propriety and, given, the would be notice would de- recovery judgment. will say that, feat the of a not do to fifty-seven years provisions requiring that these notice been have books, on the statute no instance recorded sane be- ing adjudged deprived property, so and of his and in- outrages only highly stances of such are found in im- colored and probable Marquis (85 in works of For stories fiction. the case Mo. 615) reports is an in our own instance where a citizen was so ad- judged notice, insane without and at the very next term ap- court peared proved not, was, and that he was and never insane. But past experience may been, however the have the fact remains that possibility outrage being perpetrated the of such an is afforded statutory provisions to; duty courts, the referred and the the’ question arises, prevent whenever happening of such a wrong, by declaring provisions those to be unconstitutional.” safeguards
Let provided by us consider what are our statutes. provisions, concerning insanity hearings The essential and the care custody persons and of unsound in contained the Revision 1835, to, present above referred have come down to with time change as plan, part .little to essential and are now a 18 of Article original Chapter 1, 1929. provision Revised appearing Statutes 1825, bringing person alleged in the statutes of for un- to be of sound mind before 1835, the court was left out of the Revision of 1835, but was reenacted in 1845. p. 323, the Revision of R. S. [See 2, 43, 7, p. 326, 327, secs. 39, p. 1845, and sec. secs. 45 and R. S. 593, Chap. 85, 1, 4, 3 7 p. 8, p. sees. and secs. 594, 39, p. and sec.
598, 46, p. 599; 1855, Chap. 3, 45 81, 1, secs. and R. S. secs. 4 and 869, 5, p. 8, 865, 864, p. 39, p. 46, sec. secs. 45 p. and Gen- Statutes, 1865, 40, Chap. 1, 3, 4, 39, eral 45 5, 8, sees. and Un- 46.] 1865, provisions der the Constitution of which contained similar for original jurisdiction Constitution, probate courts as did the re- county VI, 1 13, mained courts. Article secs. Con- and [See 1835 1865, only stitution of It seems between 1865.] probate special existence were those established acts. 1865, p. 900, General Statutes of for courts of St. Louis
[See 3, 4, 5, 8, Chapter 45 40 County.] 1, 39, 46, Sections of General 1865 1875 adoption Statutes of were after the Constitution of language exactly except reenacted in 1879 same the Revision of jurisdiction having that the tribunal court is stated to be the concerning persons, provided all as Sections matters 5787, 1875. VI, of Article Constitution of Secs. tlie [See 5791, 5794, 5829, 5823, 5828 and R. S. At that 1879.] bringing provision time, however, for informed repealed provision, against insane before the court was cases, pro and Shanldin Searcy unconstitutional declared notice, ceeding requiring him be or to have without either in 1917 adopted. was remedied This defect after latter alleged requiring of reasonable notice in service decision 102, now Sec. R. S. person. p. This sane [Laws requirement recently has held that of reasonable notice party incompetent cannot be waived at torney. Holtkamp, 330 51 S. Terry ex rel. v. [State (2d) 13; Mueller, ex 330 Mo. 51 S. W. State rel. Townsend hearing restrain one (2d) arrest and until who As endanger deranged himself or others done this case is so toasi 498, 499, provided Sections Revised Statutes see and as A. L. R. notes 10 A. L. attorney provides: “If licensed ap further no *13 alleged person hearing, for insane
pears
at such
then the court
attorney
appoint
represent
person
proceed
shall
to
such
such
ing.”
questioned
always
Thus, a
is
is
rep
whose
guardian
attorney, in
by
litem,
resented
the nature of a
ad
who
acting
capacity
merely
like'
in such
has not
perfunctory
others
a
riper judgment
him
expected “to
what with
he
duties but is
do for
v.
S.
[Spotts
Spotts,
do
331 Mo.
55 W.
would
for himself.”
investigation
(2d)
Therefore,
only
does the
under
977.]
right
represented by
his
appear
have the
to
and to be
counsel of
own
may employ
friends
if he is
choice or
counsel his relatives or
un
(and
inquired
this himself
in either case have the facts
able to do
appoint
jury)
a
court’s
into
but he is furnished counsel
(who
appears
may
if
him
call
a
represent
ment
to
likewise
for
no one
has
jury). Furthermore, even if he
been found
either
jury
sitting
may
a
of a
as
court
verdict
or
inquisition
a
aside,
new
into the facts.”
and cause
cause “set
same
procedure provided
to this
456, R. S.
In addition
[Sec.
1929.]
right
appeal
the circuit
court,
is the
to
to
there
McMenamy’s Estate,
jury there.
re
a trial
novo before a
[In
have
de
(Mo.
(2d)
2 W.
662;
Tannory
App.),
S.
S.
98, 270 W.
In re
307 Mo.
“by any
may
taken
appeal
292, R.
Such an
189; Sec.
S. 1929.]
insane,,
any relative of
attorney
or
to be
for the
county.”
any reputable
[See.
citizen of
person, such
sufficient
has been held
right
jury-on appeal
have a
S.
to
Springer
Co. v.
jury.
Hawk
right
of trial
preserve
[Black
to
991;
48 W.
(Iowa),
N.
Bresee
In re
N. W.
and see
(Iowa), 1918A, 508, R. A.
L.
see,
also,
(Tex.),
S.
White White
holding an act
provided
unconstitutional which
for no appeal where
by jury
trial
had;
also,
could
see,
Warrick v. Moore Co. (Tex.),
291 S. W.
Ex parte Dagley (Okla.),
tion, “cause the facts to be into statutory This provides separate scheme at least four and distinct occasions when a by jury only necessary may trial be had. It ask for it. We is right plan preserve jury that this fails hy cannot hold trial may opinion There inviolate. difference to whether as an safeguard by jury a trial in the first additional instance should be Legislature. compulsory that is contended, however, provisions actually these that all do not is right anything because is insane cannot waive
preserve the one who waiving just conveyance his act in void as course, any attempt. Of other act he fact right jury inquiry, not, whether demanded or before he had no Constitution nor under the first adoption of a Constitution However, is also answer contention. adopted is a sufficient to this one who is sane and able to exists and that sufficient that sane, if one; who is not unable have that one jury can ask for a make event request waiver must or a valid make a valid either necessary of a the conduct request every other act and do can represent him, and qualified through one who some represent counsel provide friends jury if relatives or have a him him, the court representing one; that no one asks for who *14 investigate facts the duty is it to attorney him whose for appoints an finally, advisable; and, that if seems jury trial one for a and ask lies there sitting a decision of the from the by any- him for may be taken court, which circuit appeal an jury may had. a novo before a de where trial interested, one in- say to notice to that cases Searcy Shanklin is said question begs useless, the it is unnecessary because person is sane sanity. matter of the inquiry is to determine purpose since the tria) was jury say a that to beg question here likewise It would dif- no make it would insane if unnecessary because say not fact, and we do that found jury or a whether ference legal without trial have a cannot if who is one But that. fol- it, it not would waive or legally demand he cannot jury, because examine cannot he because be invalid also would trial low that-his jurors, challenge the see that is he by confronted the witnesses them, subpoena and cross-examine in his behalf, witnesses own make exceptions objections incompetent and take evidence and to other rulings occurring prejudicial matters or in the course of trial, deprived and also because he would be of counsel since he cannot attorney represent make with an a contract him and cannot legally rights? course, Of if waive these he is to have a trial at all some- juris appear one must preservation sui attend to the of these rights Why him. important representative cannot his also en- right by jury? fact, his to a trial In application force for habeas corpus signed Mary Moynihan here is not attorney behalf, sign in her and it is not even that shown she could it or knows Recognizing anything about it. that one of unsound mind cannot himself, provides represent act our statute for counsel him provide We, therefore, if he do not counsel. or others hold right person to be insane under has Revised by jury probate court, if trial Statutes a trial jury person acting demanded either or counsel is right behalf; is he have the that it not essential that a trial not; jury there, Legis- and that the acts whether demanded or insanity hearings is providing procedure for lature uncon- compulsory, when stitutional, not made because right preserved both in the first instance on appeal it is to have provision appointment is made for of counsel who and the further who is unable to do it for himself. can for one enforce this matter should be considered and whether One other statutory requirements in this case. have been followed or not the appeared from the face of record proved If or if it it was judgment disregarded, rights were petitioner’s constitutional subject in covering the whole the statutes be void. While would safeguard rights persons amply sanity are constitutional should observe the inquired into, courts whose Acting Sections laws. under letter of these spirit well as the proper for the court order Statutes 499, Revised Moynihan if it Mary E. and confinement temporary restraint far disordered was “so that she grounds to believe reasonable had endanger own her in her mind as to persons over of the state jurisdiction “As inherent of others.” duty protect the com upon its in part unsound mind rests guidance of under are not who of those from acts munity insane that any is so . follows, . . reason, it community, dangerous to himself remaining would be authority than the warrant, or other without may, other *15 person, dangerous insane such case, necessity confine of the inherent only during long so a time as be necessary to institute and carry proper to a proceedings determination inquire to into the party’s provide legal condition and for custody.” [Buswell Insanity, p. 33, See, also, notes, 23. 10 A. L. R. 488 and 45 A. L. But even circumstances, in such be it should remembered 1464.] preliminary
that the order 498, authorized 499, Sections Revised 1929, adjudication Statutes is not a final valid fact insanity. of the hearing provided by The Section Revised must Statutes still suspected be had and the insanity still "is entitled to be hearing counsel,” at said and to be assisted stated required the notice Revised 1929. Statutes The practice sending asylum a person hearing to an before insane might preventing result in person claimed to be insane em from ploying hearing. counsel or Of being present at the there course bemay circumstances when action advisable and is where there place except great expense, is no other suitable available at but such rights impair action should be taken with caution not of the to alleged person. statutory authority probate insane to The court has 1929) special (Sec. speedy call a term R. S. is when action necessary, five days, under Section Revised Statutes ordinarily Terry Holtkamp, is State ex rel. sufficient notice. [See (2d) 51 S. l. c. 19.] restraint, as made
However, temporary such an order for superintendent here, binding upon the is not is Hospital until an order made keep State to confined in a like a. commitment that court release. It is no sense jail penitentiary. The criminal for a in the ease definite term discharged set at person may lawfully paroled and either be any time. liberty by superintendent [Sec. own motion [Chap. institution. hospital R. S. is a State The 1929.] superintendent R. S. is one skilled and 2. Arts. 8578, R. S. He mental treatment of diseases. [See. and the person’s mental condition qualified to better determine public judge. He necessity for his confinement than the If presumed. improper part will not officer and action on his hearing which to person confined counsel or attend desires right would be the and it notice, he he has constitutional has it, precaution with the duty superintendent allow even to Moreover, as we have necessary. thought if he attendant alleged to be insane pointed out, preserve attorney required appoint represented, the court inquire attorney is, duty course, of this purpose. whether and inform circumstances to determine into the ought present, so purpose. hearing for ask the court continue *16 Moynihan Mary that E. was is that the record here shows it true in No. until further order of the Hospital confined State ordered hearing at and that she not at the which probate court was adjudicated insane, be it is also shown that at- she was to but any torney absence of appointed represent and, was to her investigated otherwise, showing presumed must both that lie it having present. propriety and her It for her absence reason grounds presumed for the must also be that there were reasonable probate restraint at State preliminary order of the court her alleged she now or nor claimed here that is Hospital. It is neither sane; that now was not then so far disordered was she is not or then endanger prop- mind as to her own her erty others; but not employ that counsel she asked see any request so; any or made permitted to do she had desire that hearing that it would have attend the or even was such condition one, informant, pro- so; any either possible been for her to do that attorney, Hospital superin- judge, appointed State bate her or the dishonestly fraudulently; tendent, any different acted nor that re- hearing. at another sult could be reached Marquis, If In we would this a case like re discharged. There, adjudica petitioner not hesitate to order after insanity, appeared term tion at next judg “and court to aside the probate of the moved the set ground guardian, alleging appointing ment and the order said given him proceedings; notice not said that therefor that had been proceedings fact such had he was not of unsound against him, him was from and that he been instituted concealed brought proper was in condition be notified and into court.” There, upheld sustained motion and this court action, saying: proceedings in its “The under the law concernina' judgment, which persons sane are not like final is unalterable after fiere, They was rendered. are like the end the term at which it irregularities pending, them or record cause defects any long lunatic at time as the is under the con obviated so competent for guardian appointed for him. It was trol of discharge custody any lunatic at time from care court to irregularity guardian so soon as was informed of the of the it is in all proceeding.” The relief addition to the other such proceedings described, claimed, is hereinabove not statutory case, exists. It was not and is in this condition provided this relief or late ask the court for now too would, which either of 493, Revised Statutes it, be more than the relief was entitled we petitioner effective could, application corpus, upon for habeas which grant would showing only custody here, be to return her under the We, therefore, hold that proceedings. further court for unlawfully restrained. shown to be not in this case custody Mary Moynihan remanded to the ordered that Number Hospital Insane Four Superintendent of State Ferguson Sturgis, Farmington. CC., concur. foregoing opinion adopted CURIAM: —The Hyde,
PER 0., *17 judges All opinion the court. concur. as the Exchange the Commissioner of Marshfield, Bank Farmers Savings Finance, Appel- Association, Farm Home & Loan & (2d) lant. 61 S. W. 717. One,
Division June Eaymesj Allen é Ewing, ^Allen and Ewing & Ewing . ap- pellant.,