*1 the action to defeat Prudential was not entitled still good pay- keeping tender the amount of the without unnecessary ing Therefore, it is the amount into court. trial for a new decide further causes instructions, receiving giving and the of certain rejection which re- certain evidence admission There no error in defense of rescission. lated to the verdict, overruling directed the motion the court sufficient evidence the verdict was sustained overruling contrary The court did not err in to law. jury’s answers on the appellant’s motion for general notwithstanding interrogatories verdict. Judgment affirmed.
Bobbitt, J., dissents.
Note.—Reported in 108 N. 2dE. 61. Dowd, Warden, v. etc.
Finkenbiner 28,809. Rehearing [No. denied Filed October 1952. December 1952.] *2 Peru, J. and Walter & Cuthbertson Guthbertson *3 Peru, appellant. Bixler, for McManamon, Attorney and John General Emmett J. McClain, Deputy At- T. Ready and William O’Connor General, appellee. torneys for filing aof action arises out This Bobbitt, J. corpus by appellant habeas petition for a writ seeking release from the LaPorte Circuit Michigan at Insane Criminals for Indianа City. charged July appellant affidavit was
On aof Circuit Court with commission in the Wabash Injury upon “Committing Bodily a felony, namely: was, date, apprehended He said Police Officer.” on Jail, County on the in the Wabash and confined Judge day Circuit Court of the Wabash same suggesting that be entered a memorandum caused to believing ap- grounds that for there were reasonable appointed Subsequently court pellant was insane. physicians two appellant examine and, proper after hearing, he was found not comprehension have sufficient to proceedings understand the and make his defense thereupon and was committed to the Indiana Colony for Criminal the Wabash Circuit Court until such time as he sanity. was restored to (His disability removed.)
Appellant was, pursuant order, to said subsequently confined to said institution. April, 1950,
In the Warden of the Indiana State Judge Prison notified the of the Wabash Circuit Court appellant that had been sanity, whereupon restored to County sheriff of Wabash was ordered to return appellant proceedings for further in the criminal action pending against was there him. Said action again 15, 1950, was set for trial on June at which time prosecuting attorney County of Wabash filed writing allegation (the appellant, defendant) comprehension “had not sufficient to understand the proceeding against nature of said him and to formulate Whereupon a defense thereto.” said cause was con- and, 22, 1950, hearing tinued on November was again sanity appellant, held on the again comprehen- the court found he did not have proceedings sion to understand the sufficient make and, upon finding, said entered an his defense order recommitting appellant such time he able to “until
Insane Criminals charge make a de- comprehend the nature of order Pursuant to said thereto.” fense *4 for again in the Indiana confined Criminals. 27, 1951, appellant February filed in the LaPorte
On corpus, petition for of habeas Circuit writ quash filed and which a motion was sustained. only assigned sustaining of error here is the
appellee’s quash. motion to appellant’s
We shall first consider the naturе of corpus. petition1 for writ of habeas parts, corpus, omitting of formal Petition for writ habeas as follows: Paragraph “Rhetorical One: respectfully shows to Robert Finkenbiner “Comes now illegally custody he held in and that the Court that he is liberty wrongully in for restrained of his County, of Indiana situated in LaPorte Insane Criminals State jurisdiction of this Honorable Court. within Paragraph Two: “Rhetorical further “Your would show that said restraint and Petitioner specifically alleged confinement, alleged, in as above is more Paragraph, following of this Rhetorical to-wit: subdivision .
“A: day July, Prosecuting Eighth (8th) “That on Twenty-seventh (27th) Attorney Judicial Circuit of the Court, Indiana, in the Wabash filed an afiidavit Circuit felony, ‘Committing charging a to-wit: Petitioner with this Injury upon Bodily Officer’ and which criminal a Police action 4142 and cause of action Number identified as Cause was (8th) day July, 1939, now, has, Eighth been the said since Wabash Court. pending action said Circuit as a cause of “B: day (8th) July, Eighth 1939, a warrant on said “That to, upon which warrant herein referred the affidavit issued upon in the Petitioner confined and this Petitioner served this County Jail. Wabash “C: July, 1939, (8th) day Eighth said on the “That Judge caused be entered Circuit Court of the Wabash suggest- 4142, memorandum Cause Number in said the record Petitioner, believing ground this ing that there was appointed 4142, was insane and said Cause Number defendant in hearing Petitioner and after (2) physicians examine this two Court, this had, Judge found the Wabash comprehension to understand sufficient did not have Petitioner and ordered proceedings cause Number said *5 apparent It is on petition appel the face of sаid lant seeks from the LaPorte Circuit Court an order
set aside the order of the Wabash Circuit which resulted in second commitment the Hospital for Insane Criminals. This court will judicial take notice of the fact that the Wabash Circuit Court and the LaPorte Circuit Court are courts of jurisdiction. concurrent Colony
Petitioner committed Indiana for Criminal Insane sanity. until such as this Petitioner restored to time “D: pursuant Judge “That to the Order of the of the Wabash foregoing Court, alleged as the in ‘C’ of subdivision County Petition, the this Sheriff of Wabash delivered this custody the the of the Petitioner into of Warden Indiana State accepted custody Prison and Warden the of said this Petitioner confined him in the for Criminal and Insane.
“E: thereafter, “That April, in the month of the Warden Judge the State of Prison notified the of the Wabash Petitioner, Circuit Court that this as in defendant Cause said sanity, Number had been and was restored to and notice was received the Wabash and Circuit Court the Court County ordered and directed Sheriff of return Wabash County proceedings this Petitioner Wabash for furthеr in said 4142; Cause Number and which order executed was said County Sheriff of Wabash this Petitioner returned to County jail County, Wabash in confined the of said and this placed upon Petitioner released to be trial of said criminal alleged offense as Cause Number and said Cause set (15th) day June, for trial for the Fifteenth 1950.
“F: withstanding prerogatives “That exercise of the Superin- said Warden of said Indiana Prison Hospital, contemplated by tendent said Insane as con- Superintendent by Legislature ferred said Warden and Indiana, Statе of in the release of those confined in said especially, Petitioner, and more Prose- cuting subsequent Attorney County, of Wabash to the release Petitioner, alleged foregoing of this above and subdivision Appellant’s petition said further shows its face on jurisdiction the Wabash Circuit Court had subject person matter (appellant), and of the and had power particular to render the which it hearing rendered, proper and that after Colony committed to the Indiana the Criminal provisions ch, Insane under §6 *6 1913, 775, p. Replacement, of 1942 Acts Burns’ §9-1706, comprehend he is able to the nature “until such time as (Tr. 5). charge p. defense thereto.” of the and make a that one in Indiana Circuit The law is well settled jurisdiction writ no to issue a of habeas has setting corpus an of commitment aside order juris- had court which another such issued person, subject and the and matter diction Petition, Court in said Cause filed the Wabash of this Insanity’, entitled, ‘Suggesting wherein 4142, paper of a Number Petitioner, in said Cause as defendant alleged that this it was comprehension to understand 4142, sufficient ‘had Number proceeding against and formulate him said nature of the the suggestion of said for the the basis and that thereto.’ defense a Attorney Petitioner conversation with this Prosecuting was a knowledge 1950, June, day a (12th) and on the Twelfth his course of conduct and this Petitioner habits of and the acts past. in the
“G: Judge the of the Wabash Circuit Court “That thereafter hearing a said Cause held on the continued day Twenty-second (22nd) sanity the and on the of this Petitioner (this 1950, finding ‘defendant, November, a Peti- made comperhension the tioner) sufficient understand does not have charge there- him and formulate a defense nature finding to’, ordered this Petitioner the basis of said Insane until Criminal committed charge comprehend the nature of time as he is able to such a defense thereto. make “H: alleged, pursuant above Petitioner to the order “That State Prison of the Indiana to the Warden was delivered
423 power particular judgment. Witte v. to render 485, Dowd (1951), 630; 230 Ind. 102 E. 2d N. See Dowd, Wood 702, Warden (1943), also: v. 221 Ind. 51 356; Ingersoll Kunkеl, (1936), N. E. 2d 210 Warden v. 482, 183; ex rel. Kunkel Ind. 4 N. E. 2d State v. LaPorte (1936), Circuit Court N. E. Ind. Daly, 614; Goodman Warden (1929), 201 Ind. v. 906; Stephenson Daly (1928),
165 N. E.
200 Ind.
v.
196,
While appears complained detention of is virtue court, proper process will not be writ granted judgment sup- proceedings unless ex porting process absolutely void. rel. McManamon v. (1950), Cir. Ct. 229 Ind. Blackford Howard, 556; State ex rel. Cook v. 95 N. E. 2d 2d Warden 64 N. E. 25. deprived Superintendent for Criminal Insane and of said liberty Charge and of a on the Criminal in said
of his trial *7 4142, all in violation the laws of the State of Cause Number and the Constitution of this State and thе Constitution Indiana States of America. United Paragraph
“Rhetorical Three: “That Petitioner this is entitled to his release from confine- Hospital in the Indiana ment for Criminal Insane for each of separate reasons, follows, the as to-wit:
“A: illegally deprived “That this Petitioner is held and of his rights alleged a result of his release as in ‘E’ subdivisions Paragraph ‘F’ of the Second Rhetorical of this Petition.
“B: day “That Petitioner this was sane on the and date of his Hospital release alleged from the Indiana for Criminal Insanе as Paragraph (2) in ‘E’ sub-division of Rhetorical Two of this comprehension Petition and at had the time sufficient to under- charge against stand the nature of the him and to formulate a defense thereto. areWe mindful of the that the fact cases above cited involved upon commitments based final convictions and judgments prosecutions. in However, appel- criminal lant’s commitment to for Insane Replace- Criminals under Burns’ 1942 §9-1706, said ment, supra, finding is based a Wabash proceeding, in a Circuit Court criminal hencе the rules apply equal cited announced in decisions above with bar. force the facts the case at Appellant’s petition its on face that he shows being proper held of a order of virtue Wabash showing pro- and there is no Circuit Court ceedings supporting the or the commitment order jurisdiction to had The Wabash Circuit Court void. which re- and issue the commitment enter order the Indiana turned LaPorte it follows Criminals power to set a writ of habeas has no issue by the heréin issued commitment aside order Circuit Court. Wabash constitutional Appellant contends that his
Second: com- his second rights and denied violated have been “C: comprehension and has is now sane Petitioner “That this charge him and nature of to understand the sufficient thereto. defense formulate a
“D: now committed held “That Petitioner this upon any custody by any final committment issued court, any of Indiana or the United State in the State America. respectfully “WHEREFORE, asks that Petitioner defendant, may Corpus said be issued of Habeas writ Dowd, State Prison of the Indiana F. Warden
Alfred *8 Insane, for as Superintendent the Indiana Criminal may discharged his aforesaid, from Petitioner be proper imprisonment all relief.”- and for other said restraint
425
for
mitment
contends,
con-
If,
his
Criminals.
denied
rights
invaded or
been
have
stitutional
must
case at bar
remedy
in the
the facts
his
under
upon
judgment,
in
court
in which
be found
rendered,
in
issued,
or
commitment was
which said
Re-
9-1706a, Burns’ 1942
appeal.
on
Section
this court
1951,
238,
682;
p.
ex rel.
ch.
placement,
§2,
Acts
Cook v.
694,
Howard,
(1946),
223
Warden
Ind.
Warden v.
25, supra; Dowd,
E.
(1942),
N.
2d
Anderson
658;
2d
N.
In
E.
the Matter William
T. Undеrwood
Third: “is comprehension now sane and has sufficient to under- charge against
stand the nature of the him and formulate a defense thereto” and relies Replacement, Burns’ 1950 Acts §22-1223, p 179, right apply ch. for his to to LaPorte §23, he habeas for a writ of sanity, attempts he com- to establish his and that has prehension to the nature of sufficient understand charge County. pending in Wabash him title ch. said 69 of the Acts is as concerning insanity “An inquests, follows: Act procedure adjudging persons insane, the commit- persons hospitals insane, ment insane their for pending admission, discharge therefrom, care their apprehension patients pro- and return of insane aiding hibiting escape kidnapping of insane persons.” It consideration of the title is clear from a together act, provisions, of said with its entire applies only persons who, to those as a result an provided inquest, in said insanity manner held act, hospital any insane as are committed persons apply who person, an insane does *9 426
may be committed tо an institution for the criminal provisions under insane the ch. of of the Acts of 1913, swpra. 9-1706, supra, appellant
Section under which by to committed the State for the the part criminal Wabash Court is a of our provides specific statutes and a method for com- mitting charged crime, person “has with who proceed- comprehension the not sufficient to understand ings Colony defense,” and make his to the Indiana for Insane, (to for Maximum the the Division Criminal Security Beatty of Dr. M. Memorial Hos- the Norman pital—Acts 1951, p. 682, ch. Burns’ §2, §9-1706a, Supp.) person the such time as shall have 1951 until removed). sane, (his disability become supra, provides, part, as follows: Said §9-1706, super- shall become sane “Whenever the defendant certify hospital the fact insane shall intendent of the court, his an order on proper enter who shall defendant, or directing return the the sheriff to record instance in the first may such order court enter the de- sufficiently advised be he shall whenever italics.) (Our sanity. to restoration fandant’s adequate appellant remеdy an his This furnishes for supply alleged wrong and it is the neces- sufficient sary process. McKee et al. v. elements due E. N. Hasler al. et 2d 657. appellant dependent provision
Under superintendent of the institution upon the action of his for a re-examination he confined in which by petition, court from sanity may, advise the but sanity, of his restoration which he was committed thereof, being sufficiently court, upon advised directing return the sheriff to an enter order shall county from which he was defendant committed being purpose placed for the trial pending offense him. This section criminal specifically “day in court” affords may provides from he be released a method superintendent custody the institution may, he which he is confined. Under this section and, sanity allege way petition, his restoration hearing, issue. proper after will decide the court by the Appellant further contends Fourth: *10 upon which second order the Wabash Circuit Hospital Insane for to the he was recommitted State right liberty deprived and his of his Criminals he was agаinst charge him pending to a trial the criminal the Indiana and “laws of the State of violation the the of this and Constitution Constitution State United States of America.” question whether, pro when in a criminal
ceedings a court has found that a defendant does not comprehension
have sufficient to understand the charge against nature of the him and formulate thereto, has de- defense committed such Criminals, fendant to the State for Insane subsequently is declared the such defendant sane superintendent to institution and returned such charge against him, pending stand trial on the criminal trial, again, can at time the second court impression competency, first determine his is one of in this court. Legislature
By
supra,
provisions
of §9-1706,
charge
placed
criminal
has
in the court
which a
com-
pending
power
(jurisdiction)
determine
incompetent and
and,
petency
if found
defendant
understanding
offense
nature
without
as
him,
a defense
formulate
and is unable to
charge,
such
to commit him to the Indiana
Hos-
pital for
Having
juris-
Criminals.
assumed this
bar,
diсtion in the case at
the Wabash Circuit Court
long
will
charge
retain it so
criminal
is there
pending against appellant.
Ferger
State ex rel.
v.
(1949),
Circuit
Ct.
227 Ind.
E. 2d
84 N.
585; State ex rel. Cook v. Madison Circuit Court
(1923),
20, 27,
The Wabash Circuit Court has the sole provisions supra, under the of said §9-1706, to deter- if, when, comprehen- mine defendant has sufficient proceedings pénd- sion to understand the criminal there ing ¿gainst thereto, him and defense make his jurisdiction does not to determine lose superintendent because the of the State appellant Insane Criminals where was confined notified judge of said Wabash in the month of Circuit Court April, 1950, sanity had been restored County subsequently and he was returned to Wabash subsequent to face trial a time. In re second Ostat- 377; ter, Petitioner Kan. 175 P. See R., Annotation, p. 1084. also: 88 A. L. forth the LaPorte
For the reasons above set sustaining appellee’s *11 did not err motion quash corpus, the writ of habeas said trial court is affirmed.
Judgment affirmed. J.,
Gilkison,
opinion.
dissents with
Note.—Reported in
DISSENTING OPINION agree I am opinion unable to with the Gilkison, J. that: “The law is well settled iñ Indiana that one Cir- jurisdiction a writ of habeas no to issue has cuit Court issued corpus setting of commitment aside an order jurisdiction of sub- had court which such another power render ject person, and the matter agree with judgment.” I unable particular am of habeas a writ that: “While further statement appears that the deten- liberty, if it corpus is a writ of process proper is complained virtue tion proceed- granted unless court, will not be writ absolutely process is judgment supporting the ings or italics.) (My void.” until settled well is ever of law
No cited in cases Indiana right. It true the settled far as in so opinion, but in the opiniоn hold as stated they in direct are propositions noted they support of the Constitution Art. Cl. §9, contravention States, as follows: of the United corpus privilege “The of the writ habeas suspended, unless when case of re- shall not be may require public safety or invasion bellion it.” - of Art. §27, It in contravention is also Constitution, providing that: privilege of the writ of habeas shall “The suspended, except be in case of rebellion
invasion; mand it.” only public safety then, de- if the Implementing corpus provisions of our the hаbeas constitutions, Assembly very prop- the Indiana General erly enacted a statute as follows: “Every person liberty, restrained under any pretense may prosecute whatever, a writ of inquire corpus, to’ re-
habeas into the cause of the straint, and shall' when be delivered therefrom il- legal.” Section 3-1901. Burns’ 1946 Replacement.
430 corpus venue of proceedings habeas specifically is by statute, fixed Replace- Section 3-1905 Burns’ 1946 ment, thus: corpus may granted “Writs of by habeas be superior cirсuit county or courts of the in which person applying may therefor be restrained of liberty, by or judges his her courts, or of said vacation; whether in or judges term or if said be circuits, absent from their or reason of sickness or incompetent other cause be unable or to hear same, any judge determine the then such any adjoining circuit, application, granted delay.” writ shall be without provided
It is further that the writ shall be directed party having person officer or under re- Replacement. straint. Section 3-1907 Bums’ 1946 hоlding court, agree It has been consistent of this corpus pro able with the above statutes that a habeas ceeding brought county should be in the where person applying liberty. restrained Ex Parte 528; Wiley Murphy Daly (1934), (1871), 36 Ind. v. 179, 769; Bevington 184, E. ex Ind. 188 N. State rel. 206 (1942), 149, 150, Myers, Judge 41 E. v 220 Ind. N. . 358; (1942), Ind. 44 2d Newsom V. Miles 297; ex rel. E. 2d Howard v. Hamilton Circuit N. E. 66 N. 2d 62. The quoted in aid of the assertion of the statutes above are agreeable right and are therefore with habeas constitutions. the federal and state However, which, we have another statute enforced if (as comрletely been), it has rather nullifies the habeas corpus provisions constitutions, of both thus: judge inquire legal- “No or court shall into the any judgment
ity process whereby party or discharge custody, him the term of when expired the cases in either of commitment has *13 following: any Upon any process final issued on “Second. competent jurisdiction. judgment of a court of Replace- “. Burns' 1946 . . .” 3-1918 Section ment.
Thus we have the anomalous that the situation citizen bring corpus proceeding must his habeas in the circuit superiоr county court of the in which he is unlaw fully restrained, agreeable with Section 3-1905 Burns’ Replacement, then, 1946 and those courts are forbidden petition. and to hear determine This rank his is a Replace contradiction of Section 3-1901 Burns’ 1946 ment, majority supra. opinion and all the authori upon upon ties are relies based this contra dicting upon 3-1901, None statute. is based Section supra. course, everyone any Of who is committed to penal of the state institutions is committed on a final competent jurisdiction. of a court These jails institutions include all the in the several counties Farm, state, Penal the Indiana the state Reform Prison, atory, the Indiana the Indiana Women’s School, Prison, Boys’ the Indiana the Indiana Girls’ Criminals, School, the Indiana for Insane are hopeless epileptics and insane criminals into which re indiscriminately,1 is now where cast only someone when statute it is strained. Under this wrong other kidnapped ransom or some and held for issue Writ” can Freedom purpose the “Great ful that circumvention a dirеct statute is in Indiana. This afore constitutions provisions of our corpus the habeas opinion are in the cited authorities noted. The several they wholly like the statute upon this statute based 902. 96 N. E. 2d Harmon See Dowd v. are in circumvention of our constitutions. Because of this statute recently and these decisions this court suggestively rather truthfully determined and an statutory proceeding nounced: “Habeas is a judge, the State of Indiana.”2 *Thelearned who made statement, statute, cited the author §3-1918, ity. give If we cоntinue to force and effect to that statute, peculiar very statement is true. We have properly overruled the case in which this announce ment was made3 because decision overruled inis logical circumvention of our constitutions. To be duty true to our we should declare the statute unconsti tutional, and all the cases based it will fall with always it. It must be true “An unconstitutional *14 provision proceedings.” cannot be basis of lawful Tp. (1854), 557, et Greencastle al. v. Black 5 Ind. 564. long try protect statute, simply So аs we to we corpus deny prisoners. habeas to It has been said truthfully corpus that, of habeas Despite protected “. . . fact it suspension by constitution,
from
become encased in a
the state
it has
statutory
judicial straight
jacket
practically
which has made it
unavailable
safeguarding
aas
vehicle for
the constitutional
rights
prisoners.
of
.”4
. .
unexplanable
This anomalous situation has caused
decisions in a
of
**It
number
recent cases.5
is true our
2 See State ex
(1946),
107,
rel. Barnes v. Howard
224 Ind.
109,
may happen being to be available at the risk of precluded ceeding attacking corpus pro- from in a habeas alleged judgment. remedy an void The corpus habeas ing is more fundamental and far-reach- judgments remedy void than the right appeal. a to writ a habeas and part of the land if law the facts justify party relief thereunder is entitled to this though might even relief achieved same result common have been remedy the more appeal.” appellant might It cannot matter what other remedies pursued. have He and is entitled to refusing legality corpus. By detention habeas right prisoners allow the constitutional writ compel apply courts to the Federal where we .them go granted, permitted they behind are the writ is and show the facts of commitment *15 rights) that make (usually of constitutional the denial judgment void. concerned, appeal is So far no appellant’s presented as whether restraint was to us by the or is void. The facts were not heard court. presented only question entitled is: Is C. ex v. Blackford Ct. rel. See McManamon many cited. 2d eases there E. and the 95 N. present county to the circuit the matter court of the where he is restrained and to have that court deter- mine, evidence, presented from the facts whether present At time restraint is lawful or unlawful. the entire matter is determined statute to agreeable attention, I its have called with terms every applicant is brushed trial. off without a Under obey compelled our the trial courts are decisions its commands. addition, judgment it will noted that no final
In
be
court,
appellant by any
has ever been rendered
liberty
yet
than
he has been restrained of his
for more
against him,
years.
he is
thirteen
this decision
With
having
imprisonment
for life
without
had
doomed
ever
any judgment against
trial,
I think
him.
and without
inquired
restraint
he is
to have the cause of his
entitled
into,
corpus proceeding
“deliv-
and to be
in his habeas
illegal.”
if
ered therefrom
think the
should be reversed with instruc-
I
quash.
the motion
tions to overrule
Note.—Reported in
Donaldson 28,917. [No. December 1952.] Filed