135 Ga. 259 | Ga. | 1910
(After stating the foregoing facts.)
By the Civil Code of 1895, § 2573, it is declared, that, “Upon the petition of any person, on oath, setting forth that another is liable to have a guardian appointed (or is subject to be committed to' the Lunatic Asjdum of this State), the ordinary, upon proof that ten daj^s notice of such application has been given to the three nearest adult- relatives of such person, or that there is no such relative within this State, shall issue a commission/5 etc. The commissioners appointed are required to examine, by inspection of the person and hearing testimony, if necessary, -as to his condition and capacity to manage his estate, and to make return to the ordinary. Upon such return finding the person to be as alleged in the petition, or within either of the classes named, the ordinary shall appoint a guardian for him or commit him to the lunatic asylum (now called the State sanitarium). § 2574. Guardians of insane persons are authorized to confine them, or place them in the State sanitarium, if necessary for their own protection or the safety of others. § 2581. By section 2582 provision is made, that, “When there is no guardian for an insane person, or the guardian, on notice, refuses or fails to confine his ward, and any person shall make oath that such insane person, for public safety or other good and sufficient reason, should not longer be left at large/5 the ordinary shall issue a warrant as in criminal cases for the arrest of the insane person, and on an investigation of the facts may commit him to the State sanitarium.
The proceeding which was instituted before the ordinary was not to have a guardian appointed for the estate of the prisoner; nor was it one under section 2582, to have an insane person confined, whoj for public safety or other good and sufficient reason, should not be left at large. The prisoner was not at large. He was already confined in jail. The question was whether section
It may be noticed also that the section of the Civil Code under which this proceeding was sought to be taken provides for eases when it should be made to appear by petition that a person is liable to have a guardian appointed, “or is subject to be committed to the lunatic asylum of this State.” .But one who is held in jail to await his trial for murder is not subject to be committed to the State sanitarium (lunatic asylum) of this State by the .action of the ordinary, independent of any proceeding in the superior court. We do not discuss the question whether a person who is out under bond might be subject,to a proceeding under section 2573 or section 2582 of the Civil Code, or what effect the action of the ordinary in such a case would have upon the trial of the criminal case, if any. That question is not before us.
There was no other remedy to prevent the unlawful proceeding-before the ordinary except the grant of the writ of prohibition, 'and it was properly granted. Civil Code, § 4885.
It was suggested that the prisoner might need special treatment for his malady, and therefore should be sent to the State sanitarium,
The case before us was called for trial at the February term of court, and postponed at the instance of the prisoner’s counsel. It was set to be tried on the first Monday in May, which was the second day of the month. Sometime in March the proceeding before the ordinary was commenced. The application for the writ of prohibition was heard by the judge of the superior court on the day which had been set for the trial of the criminal case. It will therefore appear that, as applied to the case in hand, the apprehension of delay and lack of medical attention is rather theoretical than warranted by the actual facts.
Judgment affirmed.