103 Kan. 487 | Kan. | 1918
The opinion of the court was delivered by
The petitioner, Abe Ostatter, is seeking a release from the asylum for the dangerous insane at Lansing, Kan.
In March, 1914, a prosecution was commenced upon an information charging him with murdering Anna Cohen. At that time a commission appointed by the court found him to be insane and incapable of conducting his defense, and he was thereupon committed to the asylum for the dangerous insane, there to be cared for until he should recover, when, he should be returned to the court for trial on the information. In December, 1914, the medical superintendent of the asylum certified that
The petitioner offers some testimony to the effect that he has recovered, is mentally normal, and that the life of no one would ■ be in danger by his release. Evidence was offered that petitioner was afflicted with the Jacksonian form of epilepsy of the ■ grand mal type, which is said to be incurable, and that so long ■ as these seizures continue he is unfit to be at large. One witness who testified in behalf of the petitioner stated that he -appeared to be normal, but he admitted that he had no knowledge of epilepsy or its effects. A physician who was a specialist in nervous diseases expressed the opinion that the petitioner was
In the judgment- committing him to the asylum it was recited that he was to be. held in custody until the superintendent of the asylum should certify to the district court that the petitioner was wholly recovered and that no person would be in danger by his discharge, and until an order of that court discharging him had been made. The judgment was entered in accordance with the statute then in force, which provided that a person so committed should not be liberated except upon the order of the court committing him, and until the superintendent of the asylum should certify in writing to that court that in his opinion the person committed was wholly recovered and that no person would be in danger by his discharge. (Laws 1911, ch. 299, § 5.) An act was passed in 1915 purporting to confer upon the state board of corrections the power to liberate prisoners acquitted of a criminal charge on the ground that they were insane when the crime was committed, and prescribing the procedure to obtain such liberation. (Laws 1915, ch. 339.) The validity of this act has been challenged, and the district court of Shawnee county has held it to be void in a j udgment rendered several years ago, which has never been reviewed nor set aside. Its validity is not a question in this case, since its provisions are not invoked and the petitioner has not attempted a compliance with its provisions. He has not complied with the terms of the judgment committing him to the asylum, nor has he taken the steps necessary to a discharge as provided in the act of 1911, and, as we have seen, he has not even followed the procedure of the challenged act of 1915. The petitioner secured an acquittal of the crime of murder on the ground that he was insane when the offense was committed. That verdict established his status, and under the law he is to be regarded as insane and dangerous until a showing has been made as the law provides, that he has been restored to his
Had the duty devolved upon this court to determine whether the petitioner is wholly recovered and restored to his right mind and that no person would be in danger by his discharge, we must have held that the evidence did not establish a recovery nor warrant a discharge. Not having obtained a finding and determination of recovery and restoration as the law prescribes, the writ must be denied.