*1 expounded by- proposition, the further which is in effect that petitioner, appointed guardian then the that once a has been guardian- judicial body court) action (probate in ship proceeding adjudication supersedes earlier under the Code, deprives Welfare and the administrative Institutions authority premises in exclu- officer of all and becomes the competency sive manner for and in restoration all its variants. probate guardianship Since issues before the proceeding encompass deter- did not the issues which were Superior proceeding minative in the before the Court County, it is Sonoma since under the commitment acted, respondent latter court that the we are satisfied petitioner has out failed to make a ease. discharged patient reasons the writ is For the stated custody of the is remanded to state Napa. at J., Spence, J., Shenk, J., Carter, concurred. Traynor, J., judgment. concurred J., and Edmonds, Aug. In Bank. 17855. 1949.] F. No. [S. DUFFY, T. Appellant, CLINTON PHYLE, M. ANNA Respondent. Prison, etc., State Warden *2 Appellant. Morris Lavine for Linn, Attorney A. Howser, General,
Fred N. and Clarence Deputy Attorney Respondent. General, for
EDMONDS, Phyle’s J. William Jerome conviction murder and and affirmed sentence to death was reviewed upon appeal. (People P.2d Phyle, Cal.2d days prior to the time 428].) December, 1946, two Quentin Prison, set for his execution, the warden of San as authorized seсtion 3701 the Penal stated Attorney County to the there was District of Marin “good Phyle pro In a reason to believe” was insane. Phyle ceeding adjudged question, jury to determine that a insane, hospital. and he Less was committed to the state later, than one month cer Phyle tified to the Governor that had recovered He prison was returned to execution was set for the following May.
Shortly time, petition before that a for a writ of habeas corpus was filed with this court. The writ issued and the stayed. Subsequently execution was the writ was dismissed Phyle custody was remanded to for the execution of the (30 134].) of death. A peti- sentence rehearing filed, March, 1948, tion for was denied. was Again, legal proceeding then fixed for execution. a new was Phyle’s petition commenced and to the United States stay granted. Upon Court for certiorari and of execution was matter, the further consideration of the the writ of certiorari (334 was dismissed. date, September, 1948,
A was then fixed for the third execu- days Phyle’s Phyle, time, mother, tion but a few before that behalf, superior petition in the court a for a on his filed writ compel proceeding a of mandate to the warden to institute for the sanity by jury determination of his in accordance provisions with the of section 3701 of Penal An Code. stay alternative writ was granted. issued and a of execution Upon trial, the court found that there was no reason to believe discharged, was insane. The alternative writ was stay and the of execution was vacated. present appeal judgment. is from that Prior to the
filing any briefs, attorney general for moved the fol- lowing (1) relief in the appeal alternative: To dismiss the as solely frivolous and taken delay; (2) for To affirm the judgment; (3) To advance the cause on the calendar submit the decision; same for For (4) such other relief proper. Following argument motion, appeal hearing merits. advanced grounds
As judgment, Phyle for reversal of the as (1) serts: that since he was declared insane verdict jury, presumed he is jury to be insane until a finds to the contrary; (2) constitutionally construed, gives section him by jury (3) to a trial question; on that the failure grant present proceeding trial in the was a violation *3 process of due Constitution; (4) any pro under the Federal denying judicial hearing, provided by cedure a full as laws of the State of process California' is a denial of due guarantee Constitution; (5) under the of the Federal only section 3704 of the Penal Code is constitutional if con requiring by jury upon as strued a trial the issue of restora sanity. Phyle’s substance, position tion to In is that both requirements under California law and the of federal due by process, he is entitled to a trial to determine whether he has been restored to by
After section 3704 of the Penal was Code construed adversely Phyle corpus to in the proceeding habeas (In Phyle, 30 838 134]), Supreme re granted Court of the States a writ of certiorari “be United cause of the serious nature of the due contentions presented petition.” questions presented, in the as stated by court, were “that execution of an insane man is of principles justice fundamental to the of life and fensive which political the base of all our civil and institutions. Adam lie at California, son U.S. 46 S.Ct. 91 L.Ed. 1223], Illinois, A.L.R. Carter v. U.S. 173 S.Ct. 172], by and . . . that life 216, shall not be taken parte as the result of the unreviewable ex the state determina- fact, single executive See tion a crucial made officer. Ng White, 492, 66 L.Ed. Fung Ho v. jurisdiction issues was determine these But to 938].” expressly appropriate is for us limited as follows: “It pass corpus questions to on in this such constitutional habeas contends, is if, attorney general case there as the California under remedy petitioner a state to mandamus available to compel which warden he can invoke action pro- in which proceedings, initiate mandamus ceedings will hear consider to deter- the court evidence petitioner mine whether is ‘reason believe’ that the there ’’ is insane. analysis decisions, After California statutes and with a re writ certiorari was dismissed reference Phyle, supra, said, it was held which “that neither remedy sanity nor other available to of a test defendant, except remedy condemned under section only Hence, which far here the warden cаn institute. so appears, compel is the mandamus action the warden remedy.” available And the court concluded: “We say remedy by cannot at this time that mandamus California’s equivalent will be less than substantial of one which author- directly hearing ized him apply to a court for full . . . in this situation we find no federal ques- constitutional [and] presented tion ripe which for decision here.” Mr. Justice concurring Frankfurter’s opinion likewise viewed the situa- tion procedure: as one of local “The Court now finds that all that the California Court did was to hold that as a matter of California petitioner’s claim passed could not be the direct corpus, of habeas but that there special available a remedy, local labeled whereby mandamus, can judicially pres- test his sanity.” ent (Emphasis added.) Otherwise stated, certiorari granted because claimed he was to be executed after determination as to *4 with proceeding no further open him, to and the dis- missed the when it appeared way writ whereby that there is a position may one in press his to continue right prove the to present insanity judicial obtain a determination question. opinion
As indicated in the Mr. Frankfurter, Justice it is clear that claim must subject judicial the which “present sanity”; presently Phyle review is it is is to 148 only which threatened execution executed, and is compel hearing.
could
a
Court,
However, Phyle’s
Supreme
counsel insists
to review the determi-
opinion,
its
has directed this court
hospital superintendent, which was
nation
wholly
argument
appeal.
in
decided
opinion in the
ignores the
In neither
issues here involved.
Phyle
implication
any holding
Court
there
right
matter
jury
trial
a
is entitled to a
hospital superintend-
reviewing
finding
purpose of
In re
the case
concerning
ent
restoration to
determined
134], this court
Phyle, 30
838
P.2d
[186
give
right to such
law
one a
that the
of California does
analyzing
Supreme Court, in
review,
a
and the United States
168
398
Georgia,
its decision in Nobles v.
[18
right
a
there is
rejected
argument
42
515],
L.Ed.
“A con-
said:
jury
a
under such circumstances. It
trial
automatically block execution
demned defendant cannot
tribunal, particularly
suggestions
insanity, and
a state
...
discretion
free
a reasonable
judge,
must be left
to exercise
inquiry
full
determining
whether the facts warrant a
sanity
to death.”
hearing upon
person
sentenced
therefore,
Assuming,
requires
that due
of law
upon
present
hearing
sanity
person
issue of
of a
execution,
proceeding
condemned
mandate accords
By
Phyle
hearing.
it,
given judicial
he has been
deter-
upon
only
properly raise,
mination
issue he could
and it
significant
that the
is not challenged
insufficiency
ground of
support
of the evidence to
it.
points presented
In addition
in the brief,
at the oral
argument
argued
counsel for
that the law of California
requires
by jury in
proceeding brought
compel
a trial
wаrden
a hearing
prisoner’s
to initiate
on the issue of a
provisions
in accordance with the
of section 3701 of
7 of
I of
the Penal Code. Section
article
the California Con
provides:
‘‘The right
by jury
stitution
to trial
shall be
remain
all,
right, however,
secured to
inviolate.” That
(Pomeroy
at
Collins,
such as existed
common law.
v.
; People
Powell,
198
46
v.
Cal.
P.
348
Cal.
657]
[25
;
People
Bruneman,
Cal.App.2d
11 L.R.A.
v.
P.
75]
891];
Escover,
Cal.App.
Estate
Hecke,
; Gregory
Cal.App.
P.
P. 167]
always
It has
been held
this state that the
*5
R.R.
(Vallejo etc.
proceedings
special
trial does not extend to
238]), and
P.
Co.,
At the outset of the counsel any position. wish offer evidence at this state our I do not I not think it is the time to offer evidence.” time. do opinion prior proceedings discussion of the in the After a judge you going “Are brought Phyle, the trial asked: As I argument? or is this understand submit evidence petition mandate, you are present at time on this for all certify Prison he asking is that the Warden of the State Following to be insane.” counsel’s believes defendant “Therefore, . . reply, court continued: as . affirmative certify, evidence determine refused to we can take ground for there is reasonable the Warden’s whether or not you If wish opinion, that is as far as this writ is concerned. may.” you present evidence, This offer was declined “I don’t believe evidence is neces- counsel who stated: sary your'honor.” attorney presentation general
But the insisted your please, “If He said: Honor because of evidence. gravity willing I matter, before would be to close the I to take it, book on would want Warden the stand and give impel him him to have the reasons the conclusion Phyle again that he has reached.” Counsel for stated his position issue before the court decision was one [apparently before “I think what is this Court refer- law:
ring prior to the declaring insane which was mentioned but never adjudicata offered in is res evidence] question to the insanity—certainly at that time.” It clear, therefore, that acting counsel was assumption on the this proceeding mandate, Phyle’s as to insanity as of December, 1945, January, 1946, being opened up, throughout *6 proceedings, the entire mandate he refused present sanity to meet the issue of subject inquiry.
Although there by Phyle was no evidence support offered petition writ, for the court heard witnesses called attorney general cross-examined peti- counsel for tioner. Finally, two Phyle. witnesses testified for Therefore, notwithstanding theory petitioner’s followed counsel, a full hearing and fair upon Phyle’s was held sanity the issue of at that time.
The record has been examined and discloses that the find- ings fully of the trial supported court are the evidence. Duffy appeared Warden as a witness and testified that he had Phyle visited on a occasions; opinion number of it was his Phyle presently that was sane, and there was no reason he Phyle knew of to believe that was insane. This conclusion, he stated, upon he reached the basis personal of his observation, reports but also from psychia- from six different trists, Phyle all of whom had examined and found him sane.
Two psychiatrists of these six expert were called as witnesses by respondent, and each testified that, opinion, Phyle his They was reported Phyle sane. both knew he was in San Quentin convicted of the murder of Frazee, knew he was under judgment death, knew stayed that his execution had been proceеding, the mandate was conversant with the facts of original trial, his suffering and was not from hallucina- tions or delusions. experts
One of these was Dr. Rappaport, Walter the hos- pital superintendent who issued the certificate of restoration after the entered the verdict of a contrary. Upon cross-examination, to the Rappaport Dr. shortly explained Phyle’s after commitment to the hos- very pital, frankly he “told me he had faked thing the whole surprised and he was prison Dr. Schmidt psychia- [the surprised was fooled but not that he trist] fooled warden. prisoners ... He said other conducted examinations and they friendly naturally help you are and want they would you you say what the answer indicate what should ’’ very should be. He frank. was point, petitioner At for Dr. David G. this counsel called although Schmidt, prison that, psychiatrist, who testified Phyle he insane, one time he was at had been convinced that Phyle’s testimony presently certain of This was was spite unshaken in of severe cross-examination. Phyle, Phyle,
Mrs. Anna
then
and mother
testimony
gave
that,
The
was
after
testified.
most direct
she
queerly
war,
return from the
her
son acted
she
figure him out . . . he
violent
“couldn’t
was almost
[and she]
really afraid of him.” She
stated that “he
was
improved
then
crime,
some
he
but when
and committed
left
right mind,
in his
mentally
(Emphasis
was not
he was
sick.”
testimony
added.)
compelling
Such
falls far short
aof
reason
present insanity.
a conclusion of
record, therefore, fully
supports the determination that
have,
warden
good
“does not
nor is there
reason to
that said
believe
William Jerome
has become insane
’
presently
or is
such circumstances,
judge
insane.
the trial
not have done
than discharge
could
other
the alternative writ.
*7
Phyle’s
Whatever
have been
mental condition at other
times,
legislative
expressed
concern
in section 1367 of the
Penal Code is
state
person
that the
shall not execute a
who
insane.
Supreme
is
The United States
Court indicated that
process
the due
clause
requires
Fourteenth Amendment
question
hearing upon
properly
when it
presented
is
Phyle
consideration.
opportunity
for
afforded the
present sanity”
test
“judicially
legal
Ms
ground
and no
disturbing
finding
shown for
been
adverse to him.
In order that
be no misunderstanding
there
as to
scope
holding (see Young Ragen,
this
v.
However, provides 3701 of the section Penal Code good where there is prisoner reason to believe a condemned is proceeding insane the warden must institute a directed to obtaining jury a trial of the issue his Due require (Phyle Duffy, does not such a trial. v. 1494]; S.Ct. Georgia, Nobles v. 168 U.S. 87, 42 515].) entirely L.Ed. Its statutory, S.Ct. basis may jury only
and the determination a be obtained when proceeding is instituted the warden. Mandate is the remedy proper compel public perform a officer to an official duty, may only upon and it had failure exercise duty but also where the officer’s refusal to do so constitutes (McClatchy Newspapers Superior abuse of discretion. v. Court, 944].) prisoner statutory
Where a seeks to invoke the provided by Code, section 3701 of the Penal mandate is the only proceeding. Thus, upon available assumption any judicial hearing toas must be afforded one under death, sentence of there are remedies, two each directed to an acquire simple exclusive form of relief. To deter sanity, mination of fact of habeas is the remedy. But jury exclusive to obtain a issue, trial of that provided section 3701 of Code, the Penal mandate is the adequate remedy. available and As stated Mr. Justice mandatory obligation “In view of Black: Pen. [under upon the warden to proceedings initiate § if 3701] good reason to ‘there believe’ a defendant sentenced to insane, death is it would be somewhat say anomalous, least, wholly if California courts were power without to cor agent’s of authority an executive abuse rect in a matter of significance persons.” such as the execution of insane (Phyle 1135-36, 92 L.Ed. Duffy, 334 U.S. Throughout corpus proceedings and the one sought only review, under has now trial. To relief, proper remedy, such obtain is available, proceeding for mandate here under review. But for the writ he application itself is not entitled to a trial jury; only when he obtained the writ have having “good trial, failed to show why reason” *9 inquiry, judgment denying an warden should initiate must remedy allowed sеction 3701 Penal Code
be affirmed.
It is so ordered. Shenk, J., concurred.
Gibson, J.,C. TRAYNOR, judgment. J. I concurin the of that under the decision the United Petitioner contends Duffy, 334 v. States Court [68 judicial 1131, 1494], is entitled to the hear- ing that him. this court has denied any provision of the States
Neither that decision nor
United
judicial
an initial
gives petitioner the
Constitution
sanity
judicial
or to a
re-
determination of his restoration
an
determination thereof. The statutes
view of
administrative
Phyle,
of
in In re
state,
as construed
judicial hearing
judicial
134], preclude both a
re-
P.2d
Code,
3700-
held that
Penal
sections
view. This court there
prescribed
the exclusive method
Legislature
sanity
of one condemned
which the
or
restoration
may
subsequently becomes insane
be determined.
to death who
“
provides that
the defend-
Code,
Penal
section
[w]hen
hospital
reason,
superintendent
of such
his
ant recovers
Governor,
thereupon
who must
certify
to the
must
that fact
day
appointing a
for the
warrant
execu-
issue to
warden his
held that the deter-
judgment.
...”
The court
tion of the
prescribed
hospital superintendent
mination
corpus
review
habeas
subject to
statute was not
Penal
section
provision
It invoked
otherwise.
court, or.officer,
than the
judge,
other
Gov-
3700, that “No
death,
ernor,
suspend the execution
can
prison whom he is delivered
of the State
except the warden
appeal
.
is taken.” Petitioner’s
. . unless
for execution
(
Petitioner contended procedure that the California as thus interpreted deprive him process would life without due of law, ground petitioned that the United States Supreme Court for granted a writ of certiorari. The court petition to determine whether in there was merit this (333 contention. U.S. 841 1125].) St.Ct. L.Ed. In granting certiorari, decide, petitioner court did not concludes, that the Fourteenth Amendment would be violated by a adjudication conclusive administrative that his agreed merely had been restored. It to consider the question, unnecessary but found to deputy decide it because attorney general’s statement that procedure under California judicial was petitioner. available to Hr. Justice Black, speaking for majority, stated: appro- “It is not priate pass for us to this on such questions constitutional corpus habeas if . . . case there is a remedy by state man- petitioner damus available under which he can invoke judicial compel action to the warden judicial pro- initiate ceedings, and in which mandamus proceedings the court will hear and consider evidence to determine whether there is petitioner ‘reason that to believe’ (Phyle insane.” Duffy, 1131, 1135, 92 L.Ed. court, however, This did not limit itself In Phyle, re holding supra, that habeas proper was not the remedy, holding even to judicial there could be no superintendent’s review of the determination. It held un- equivocally judicial that there could no review under Cali- judicial to a hear- petitioner’s
fornia deрended ing solely upon whether believed the warden 134].) The (30 P.2d he was insane. Cal.2d 847 holding that there review reasons for can superintendent’s preclude issuance likewise determination decision compel the warden. The mandamus action Duffy, this court Williams v. 341], compel contrary conclusion. In that ease does assumption court, proceeding on the that mandamus remedy, only did not held therein present peremptory the issuance of a writ. a sufficient case for suspension of the precludes Penal section precludes just as it judgment execution of mandamus prohibits suspension corpus. This its statute the warden intervention unless initiated holding by the United States prison. state the absence of I unconstitutional, do not that this statute is Court countenance use man- believe that court should clearly purpose. damus defeat its stated emphasis presupposes It that section valid bears require- all after a that has met of death trial opera- Then then is it of law. ments due *11 does not otherwise. It tive; it would not constitutional corpus, preclude the itself attack appropriate In the nobis, proceeding. or other coram validity judg- the present there is no case ment. has Legislature
Petitioner contends sanity prescribed determining his restoration to would for life of law. Petitioner deprive him of his without due life, his an administrative deprived bé not because is to duly sane, has fоund found him but because officer has degree. in first does not guilty Petitioner him of murder the offense insane at the time he committed to have been claim insanity his at own defense because or unable to assist intervention of trial. He relies on the accidental the time of right under insanity a basis for a trial and conviction as after judg- to the execution of Amendment have the Fourteenth He judicial determination. pending a formal suspended ment power- extensive the state is right this is so contends that admin- an final determination of less leave istrative officer. escaping execution refuge insanity as a means of
Taking right, privilege that the state has but a a constitutional is not
157
mercy
conferred as an act of
special dispensation.
or
As the
Georgia,
United States
Court stated
Nobles v.
168
87,
407
42
plea
L.Ed.
: “The
at
[18
515]
stage
an appeal
humanity
postpone
punishment
recovery
place,
until
as
takes
dispensation.
rights
prisoner
merciful
as an of
fender on trial
for
offense are not involved. He has had
jury trial,
court,
the benefit of a
and it is now the
only, which
humanity.”
must
People
be satisfied on the score of
(Accord:
Knott, 122
Spann
v.
410
P.
;
Cal.
State,
v.
47 Ga.
[55
154]
549;
Commonwealth,
Ky.
Davidson v.
846];
174
789
S.W.
[192
Commonwealth,
Pa.St.200;
Laros v.
84
State ex rel.
v.
Alfani
Superior Court,
125
P.
Recognizing
Wash.
suspension
ground
that the
of execution on the
of intervening
insanity
privilege
granted
state,
and not a funda
defendant,
mental
at
least 15 states* havе dis
pensed
judicial hearing upon
with a formal
the issue; others
merely
provided
have
inquiry
an informal
that need
satisfy only
judge
trial
of the defendant’s
Georgia,
summary procedure
upheld
whose
was
in Nobles v. Georgia,
supra,
repealed
168 U.S.
the statutes there questioned,
provides
now
method which the claim of intervening
insanity may
(Cribb
be raised.
Parker,
v.
of State issued a certificate from two (26 Halsbury’s Eng- tioners Laws of is sane. ...” 207.) proposed land Code of Criminal offiсialdraft of the provision Procedure of American Law Institute makes (§§409-12) similar to established Institute the Penal Code. Section 412 of the American Law provides to institution Code for the commitment .to be person of death who has been found under sentence provides insane. It then thereafter “[I]f opinion is of that the defendant officer such institution fact, whereupon governor, report is sane he to the shall consisting of governor appoint a commission two shall competent physicians to determine whether the disinterested If, to ... after has been restored defendant governor decides that the de- report commission, sanity, he defend- has been restored to shall cause the fendant (officer custody charge returned to the of the- ant to be prison committed) been to the defendant has which - directing him to issue a warrant and shall designated at a time in such warrant.” the sentence execute Institute, Procedure, 412.) (Amer. Code Criminal Law § necessary it been provisions has deemed of these Under none judicial hearing that the defendant accorded or desirable safeguarded against parte “right insanity” be ex or that his (See, appropriate administrative officials. determination People v. People Sloper, 802]; v. 601 P. also, Cal. 248]; Bingham State, v. Eldred, 103 P.2d Colo. 311]; Nordstrom, Wash. State Okla.Cr. P. ordinarily against executing a man advanced The reason might, if that he since has bеcome insane who (See Blackstone, stay something in of execution. sane, recall 25.) reason serve as (Jones ed.), p. Can this Commentaries executed while not to be a constitutional a basis for defendant, at the time of sane possibility that insane ? The stay after a of execution some fact trial, will recall insanity reasoning is remote. The intervening period delay right this basis a constitutional would establish man on the execution of sane postpone would also serve to conceivably might be discovered ground that a witness possibility testimony might If the save him. thereafter whose memory enough prevent were subsequently refreshed of a man, it would also render uncon- insane of an the execution possible punishment, since any capital stitutional
159 speculate endlessly possibilities about the that would rescue delayed provided man from it were condemned execution long enough. delay punishment by questioning capital
Those who would sanity may finality of an administrative determination of reality finality capital punishment be concerned with it deplores itself. Is not an inverted humanitarianism that capital punishment as barbarous the of those who have become accepts capital conviction, insane after trial and but punishment reasoning men, that would free sane a curious capital punishment only posses- from if he not in full man sion of his senses? privilegе,
Petitioner claim at most can not a constitutional right. qualified Legislature privilege The con- dition that the is not administrative determination subject judicial review; prevent it abuses has done so privilege delay. contended, however, of the to secure It is now Legislature qualify it has privilege thus cannot granted; that when the is a matter determination fact of life death, parte cannot ex unreviewable be left to the decision of an administrative officer. misleading The implication is that is condemned
by an administrative determination
of his
His life was
forfeit when a
guilty
found him
degree
of first
murder.
temporary
His
punishment
release from
was a reprieve, not
plea
absolution. His
nowis
but
mercy
to the
of the state.
Legislature
properly
can
leave to an administrative
officer the final determination as to whether a condition exists
justifies
extending
privilege.
(United
States ex rel.
Johnson v. Shaughnessy,
214
Perkins
320-338
S.Ct.
53 L.Ed.
U.S.
[29
1013]
869,
;
Co.,
Lukens Steel
113
S.Ct.
84 L.Ed.
U.S.
1108]
[60
;
Origet Hedden,
L.Ed.
S.Ct.
130]
States,
Passavant
Co. v. United
148 U.S.
S.Ct.
&
426];
Paulding,
(U.S.)
14 Pet.
L.Ed.
Decatur v.
;
Toy,
253, 261-262
L.Ed.
United States v. Ju
198 U.S.
559]
involving
present
indeter
analogous
*14
The
ease is
to those
give
agencies
laws
exclu
minate sentence
administrative
power
imposed
sive
to reduce
maximum sentences
law.
liberty
Upon
for the
conviction the defendant
forfeits
appro
specified
Thereafter
maximum term
statute.
body may
sees
priate administrative
reduce the sentence
it
liberty
turn
statutes,
fit.
allow the defendant’s
These
which
of administrative offi
parte
on the ex
unreviewable decision
uniformly upheld
ground
they
cers, have been
on the
(Ugh
provision
of the United States
violate
Constitution.
Armstrong,
372, 52
v.
notice nonjudicial judge officer determination is made parte government. Accordingly, approval the ex judge of a in the Nobles case United determination valid- would to be directed at the States Court seem it ity itself, not at the fact was of the determination judge. made independent determinations
Petitioner had the benefit of sanity by hospital superintendent and the warden. his rely presumption Legislature upon a is entitled to The hоnestly act and executive officers will these administrative judge good that a There no reason believe faith. could do more. insanity his however, that since contends,
Petitioner
adju
initially
judicial hearing,
in a
by a
determined
insane.
gave him a
to be considered
dication
vested
judgment
should continue in force
He
that either
contends
juris
proceedings
competent
a court
or there should
equal
it
one of
supersede
annul
or to
it with
diction to
authority.
adjudica
This
to that
contention attributes
later
judgment
The
not have.
did
a conclusiveness that
does
tion
continuing
insanity that can
give petitioner a
status of
judicial hearing.
(Kellogg
after another
only be terminated
12
;
P.
L.R.A.
Cochran,
v.
87 Cal.
104]
Kassler,
Halliday,
812;
116 F.2d
re
v.
United States
Sutton,
v.
; Sutton
N.C.
N.Y.S.2d
Misc.
266]
Bishop
Bishop,
App.
553];
S.E.2d
Ohio
only that the
The order of commitment stated
N.E.
and, pursuant
to Penal
insane,
was then
expressly
William Jerome
3704, provided
“when said
section
reason,
Superintendent
recovers
certify that fact to the
Hospital in
he is confined
which
State
proceedings
for further
the State of California
Governor of
’’
recognizes that
its terms
required by law.
order
as is
until
petitioner was
be confined
his reason.
certified that
had recovered
made, the
of commitment
order
that certification
When
insanity
longer
his recommitment
bar
*16
provides
as section 3704
a statute such
prison. When
to
discharge
institution
inmate
of an
shall
authorities
discharge
sаne, that he is
upon their determination
(Kellogg Cochran,
v.
person to status of
restores
;
Feehan,
v.
677, 12 L.R.A.
Shaw
P.
104]
87 Cal.
[25
People
Guiseppi Thayer,
v.
658];
ex rel.
P.
207 Cal.
293;
Lamneck,
242 N.Y.S.
State ex rel. Connor v.
Ohio St.
;
p.
N.E.2d
Smoot,
Insanity,
see
Law of
127]
§
Procedure,
Institute,
and American Law
Code of Criminal
412.)
hospital superintendent
pnrsuant
to
acted
§
reasonably
of commitment;
statute and the order
it cannot
precluded making
be held
this order
his
the determination
prescribed.
capital
court
concerned,
This
is here
with the wisdom of
not
punishment
statutory procedure
upon it,
or of the
attendant
solely
validity
but
procedure.
with
of that
never-
It
theless be noted
underlying
that there is sound reason
Penal
long
punishment
section
capital
so
as
is author-
ized in
If
this state.
a defendant condemned to death under
a valid
is allowed recourse to the courts as a matter
right upon
insane, may
his claim to
he
secure an inter-
reprieve merely by
minable
alleging that
ishe
insane. Even
he
adjudged
after
following hearing
appeal,
sane
he
allege
can
that he has since become insane. Since the issue
present
is his
insanity,
can
in
thus set motion an endless
procession from
appeal
to
appeal.
pro-
trial
trial to
to
Such
cedure “would make
punishment
‘depend
defendant
solely upon
fecundity
making suggestion
sugges-
after
insanity,
tion of
be followed
trial
(Phyle
trial’.”
Duffy,
Even it is assumed that mandamus will lie to review the determination, warden’s peremptory writ properly denied this ease. fact, Petitioner was in although erro- neously, accorded a full hearing on whether there was reason to believe that he was then insane. opinion As the of Mr. Justice forth, Edmonds sets ample was there support evidence to the judgment, peti- but presented tioner might evidence that even serve as a basis contrary for a conclusion.
Spence, J., concurred. concurring dissenting.
SCHAUEE, J., Now theerror holding (In Phyle (1947), 30 re Cal.2d 838 against corpus was not available 134]) that habeas agent ruling an administrative test the of a death, multiply. progeny starts Its person under sentence of *17 a procedure (and, originating in trial a trial court new whereby court, appeal) the convicted one it carries a of as mandamus, apparently and often may repeatedly invoke may to exercise arise, try compel to to the warden as occasion proceedings attorney to file require discretion to district the jury try anew the impanel trial a and court, in the notwithstanding that the this, All of the defendant’s had, trial has been already acted, that a warden has once so question properly to judgment sole rendered and that the process, is whether raised, requirements within of due insanity oрerative. It is original of still is still judgment gives him all operative remains insane and if defendant give him; judgment could protection which a trial and new by sanity judgment but defendant has recovered executed. expired and defendant should be its own terms has traditionally, and corpus is As is hereinafter shown habeas by court, exclusive of this the sole and earlier decisions single issue. to settle the is said that opinion prepared Justice Edmonds it
In the statutory remedy pro- prisoner “Where a to invoke the seeks only Code, of Penal mandate is vided section 3701 assumption proceeding. Thus, available hearing sanity under to must be afforded one sen- as remedies, death, tence of there two each directed to are simple judicial acquire form To deter- exclusive of relief. sanity, mination of the fact of remedy. issue, trial and exclusive But to obtain of provided of the Penal mandate is the as section 3701 adequate remedy.” proposition only And that available already though had apply here even defendant has said to Any provided for section 3701. one the trial as continuing to have no in a case is said effect because sanity its in as of date immaterial relates date; hence, respect regardless a later to the claim of first trial under sections 3701 et the outcome sequitur of a later date invoke man- the defendant as compel seeking another trial issue and damus same procedure bids fair be a most to the same end. Such a delays in would seek unwarranted useful one for those who sentences. execution death deplorably confused state which several Because of the (habeas mandamus, of the law important corpus, branches suspension nobis, process, penalty, the death con- coram due laws, insanity person, com- flict of trial for of a condemned parative powers agents courts, etc.) are administrative present opinion (or majority left lack of one which conjunction majority agree), the court read in with the opinion (1947), supra, this court in re opinions justices of the United States Phyle Duffy (1948), Court 1494], one who would seek follow *18 vagaries the through of the law of this the inconsistencies case, object rescuing possible with the of as much as of its integrity, should both concur and dissent.
I judgment denying pro- should concur the relief ceeding proper because: 1. remedy; mandamus is not a 2. the sought by already relief mandamus has been accorded the judgment determining very and valid the issues sought litigated presently to be outstanding;1 is 3. is there (and available at all times been) plain, concerned there has the and simple remedy expressly provided direct of corpus, try statute to the properly issues which can now be (Pen. Code, raised 1473, 1487(5), 1493). IBut should §§ judgment dissent from the because, suggestion if the novel corpus that habeas is not the or the exclusive try legality to the imprisonment of one’s (par- after sentence ticularly identity the his jailer, Code, Pen. 1487(5)) § followed, opinion to be as suggests, the of Justice Edmonds and if mandamus is to be substituted for habeas remedy (not as an directly added additional to determine place legality the of the identity detention or of the cus- compel but person todian to a third to administrator exercise proceedings attorney discretion to initiate to cause district proceedings try to start in a trial court to anew before jury petitioner’s as of a new date the sanity), then any follow, weight must we accord at all to earlier jury outstanding judgment of the and superior verdict of the ‘‘ court, law good that as a matter of there is shown reason to defendant, judgment believe that a under death, has become passage 1This true unless we are to hold that the mere of time consequently person repeated alters the issues and entitles a condemned may select; trials in a or, trial court the same issues as of each new date he neglect attorney suggest if the district warden or or institute then, by majority opinion, person, apparently trials the condemned ask, as often he entitled to a trial—in the trial court— labeled mandamus,” judgment and, adverse, appeal if the from such ruling. (Pen. 3701) duty insane” Code, warden § appear require would reinitiation of roundabout рrocedures cumbersome above mentioned. A brief pertinent. statement of the facts is here On Feb- ruary Phyle 20, 1946, William of the Jerome was convicted degree crime sentenced to death. of murder first Phyle The (People of conviction affirmed 428]). of that (1946), Cal.2d 671 In December attorney year, proceeding duly in a instituted the district suggestion Quentin at the under warden of San Prison Code, provisions found of section 3701 of the Penal Phyle prohibits was insane. statute execution Our superior (Pen. 1367). judgment of the insane § Phyle court, following verdict, was then determined adjudged insane in the state that he confined Twenty-five for the insane “until his reason be restored.” days (18 days Phyle’s hospital) to the later after admission hearing, trial or hospital, without Phyle sane, had judicial determination that become without prescribed or and without determination ascer- governor had standard, certified tainable recovered his and he was returned to the warden Phyle’s say, place of prison for That is to execution. identity jailer changed; of his were and the confinement *19 custody superintendent from was transferred the custody hospital for the criminal insane to the the state Phyle truth, continued prison. If, state warden required judgment of court that he be be insane the long judg- kept hospital; as as he remained insane in the any imprisonment his institu- ment effective and remained by any hospital or custodian other tion than the state othеr Phyle hospital superintendent would be unlawful. than the that detention unlawful, was his that the transfer contended superintendent unlawful, and that the was the warden sought He relief his lawful custodian. hospital remained corpus, alleging the of habeas facts by application for writ judgment and his commit- trial, the rendition of toas denied Phyle alleged, and it was not hospital. ment Phyle was, is, and still insane.’’ truth “said State, that in ruling majority of this court held that Nevertheless, hospital superintendent), agent (the administrative of the sole standard, at no fixed or ascertainable though arrived even standard, ruling, regardless of lack of supreme; that completely irrevocably terminated the Phyle court; agent’s ruling; that must be executed on the any jurisdiction that neither this court nor other had to review (In Phyle re (1947), supra, the administrative order. Cal. 838.) 2d Thereafter the United States Court issued hearing accepted certiorari but on the statement Attorney California General of to the effect that Phyle not judicial did rule was entitled no review of only agent’s order, the administrative but held that habeas corpus wrong was the and that a “labeled proper, available, remedy (whe mandamus” was the and an agent’s again try, ther review the order or to as of a new Phyle’s date, entirely sanity, the issue of is not clear) and theory upon that novel dismissed the certiorari proceeding. (Phyle Duffy (1948), supra, 431.) attorney general
That the was mistaken representa- in his tion, at least as the intention of this insofar court is concerned, apparent is known to and is language all us from the used majority. They (In declared re (1947), supra, 840-841) question “The presented person is whether adjudged who has been insane after con- viction, sentence, delivery to a prison warden of a state execution, right has the to a determination of the question of his [pp. restoration . . . 842-843] authority There is . . proposition . for the that defendant to habeas or other proceeding to determine the of his after his release from the hospital. fact, state section 3700 of the Penal ex- Code ” pressly prohibits2 proceeding. (Italics such a added.) Mak- “ ing position they clear, their still more continued [p. 845] Where is a there statute that declares that the prisoner state where the is confined may 2 reading (Pen. 3700) A of the statute discloses $ it does ‘ ‘ ” prohibit expressly any proceeding. not [ ] The context of the suggests argumentum statement it should be understood ad argues praestandam; auctoritatem that since the court itself (it premise) suspend assumes or declares as execution in case but appeal, power jurisdiction then to review in ease but on appeal impliedly prohibited. are to be understood as In other words this argument, sweeping aside without all comment constitutional considera *20 process (see People (1948), tions of 502, due v. Shorts 32 Cal.2d 330]; Mooney (1935), 103, [197 P.2d v. Holohan 294 U.S. 110 [55 406]; Taylor S.Ct. 335 79 L.Ed. 98 A.L.R. (1948), v. Alabama 1935]) completely would abolish corpus, nobis, judicial coram all and other remedies death penalty cases, except judgment appeals from the of conviction. prisoner’s sanity restored,3 person awaiting
declare the a ex- right [p. no to ecution has a determination of 846] sanity By adopting his restoration to . . section 3700 the . of prohibiting suspending Penal Code the from the courts execu- Legislature except appeal, tion of of death the provided in of are has effect the courts this state without power except [regardless provisions], pro- of constitutional sanity person statute, vided determine the of a who has capital sentenced been to be executed for a offense is the custody purpose the of the warden . . . for of execution regardless a Thus, powers . . of what the common law of . may be, procedure when the for the determination of court sanity question person of a who has been sentenced to the of power has statute, a court no inherent death covered person right such has no to a question determine question of the the so determination unless statutes question provide [p. remains whether the . . . The 847] statutory interpreted majority] for de- the [as question sanity restoration is constitu- termining the of right that defendant to an tional. Petitioner cоntends sanity, protected by of the adjudication of the Constitution of the United States due clauses such There California. Constitution . . either Constitution . under [italics added] “ separation also that contends [p. 849] III of the of section of article California powers provision by leaving the final is violated determination Constitution [p. officers ... to administrative prisoner’s 850] power superintendent Even it be assumed delivered, hospital, to whom defendant of the state reason is a defendant has recovered his whether determine foregoing provisions California Con- judicial power, the delegation power. Under authorize stitution custody super- prisoner delivered statutes the felony, thereafter, person convicted of as a intendent authority person over superintendent’s far as the so only the superintendent exercises not author- is concerned superintendence entrusted with the an officer ity superintendent purports to declare to authorize 3Our statute previously way and deter in some ascertained it has been fact when grave expressly, certainly mined; is at doubt it and there least does impliedly, to himself determine authorize does fact; which determination standard does it establish nor (See 3701-3704.) layman. Pen. §§ shall made *21 functions- institution for convicted but the duties and felons prescribed in Penal section 3704. prison
“It
that unless the
in which
follows
warden
in-
defendant is incarcerаted
that defendant is now
believes
jurisdiction
of
sane, no court
this state has
determine
sanity.”
of his
quoted
holdings of this
are
That the above
views and’
court
irreconcilably inconsistent
indicated views of the
with the
apparent
of
read-
Supreme Court
the United States is
from a
ing
Phyle Duffy (1948), supra,
of
The irreconcilable difference between the United States Su preme majority pointed and our Court up forcefully by Frankfurter, Mr. Justice concurring supra v. Duffy, ): (pp. 444-445 of “The court now finds that all U.S. Supreme Court did was to hold that as a matter California petitioner’s [italics claim added] of California passed could not be on remedy the direct corpus, habeas but there is special available a local remedy, labeled whereby mandamus, the petitioner judicially can test his present sanity . . . Whatever elegancies pro cedure which the matter is to be determined, our decision declining grave to consider the constitutional issues which we thought us, we had contingent upon a determination before by the Court that the law that state of California presupposes is what our decision to be added], [italics namely, remedy that California which California chooses present call mandamus petitioner enables the to secure a present sanity. determination of his This means, of very course, scope not the restricted which is normally of relief with the associated traditional mandamus. [Italics presupposes It that California affords added.] challenging way means of in a substantial parte the ex finding Superintendent Hospital the State . . . and enables him to secure determination of the claims he has made petition corpus, in his for habeas which, so the Court now holds, way majority proper proceed.” rely quoted proposition this court now cite and on the above yet idea every knows that no such member this court Phyle. In re This considered or this court in intended deny simply “as ground did not procedure” a matter mandamus was the of California exclusively quite differently, proper—remedy; —and corpus solely exclusively because majority denied habeas they administrative power hold that the intended to *22 supreme having been ruled on agent petitioner, was and that right any judicial agent, had to the administrative no already expressly opinion, noted, majority review. The as only question Cal.2d), pre “The (pp. declares 840-841 of adjudged who has been insane person sented whether is right judicial . . has the to a determination after conviction . ques sanity.” to Since the question his restoration question majority consid only which the tion stated the surprising not that all properly them is ered to be before support opinion directed to the end of in the is the discussion person position conclusion that a the ing their declared any judicial right to petitioner has whatsoever of defendant process. rule court did not intend to that it is that
Certain judicial have a to review of petitioner did defendant that, having agent’s ruling right, such administrative the improper, only the and mandamus corpus was habeas remedy. proper, apparent vehicle here is at
That mandamus extraordinary and “is is an to once. Mandamus ordinary the usual and forms of in cases where resorted to remedy (16 redress.” Cal.Jur. to afford insufficient § are ordinary remedy for usual and is the 784.) Habeas p. place of one’s detention. Our legality of the trying the out just as that such situations expressly provides Penal Code “Every person provides here: Section presented liberty, his under restrained of unlawfully imprisoned or corpus, to a writ whatever, prosecute pretense restraint”; imprisonment or cause of such inquire into the person when a 1487(5) provide and 1493 sections person commitment but “When is detained under court person custody prisoner allowed having is not ’’ writ and him, shall exercise the the court by law detain ‘ ‘ custody the restraint or party be committed to order such is, It and eon- thereto.” law entitled person of such as рosi sistently adjudication insanity, his has been since superintendent tion of defendant prison, is entitled to his hospital, state not the warden custody. position long That so defendant is correct remains superior per legally judgment insane court con dures. Whether the court of record final court, lay tinues in effect is a which a rather than if rights man, analysis, Likewise, in the last determine. should, (to liberty) depend it, life property or death or to person judicial determi certainly should entitled to have a legally nation court as to whether he is insane. Unless the prisoner nor can determines that fact neither know what fact standard the has been determined. Our code provides determining legal insanity; no standard for our up courts one proceedings have set for their own there is but prescribed none agents. for administrative Even if we assume power make a prima or preliminary facie determination of restoration legal sanity subject determination must be review. That much seems clear from the United States language Duffy Ng Court’s Fung Ho (1921), v. White U.S. 276 938]. The obvious, the ordinary direct applying and the method for corpus. test cases habeas *23 difficulty
The we facing are majority stems from the hold- ing Phyle In in re (1947), joined supra, with appears what spur-of-the-moment to have been adroitness of attorney general the defending majority in opinion the before Supreme the Court of the United of this States. error court lay holding in ruling the of that the administrative agent (the medical hospital) terminating of a or superseding judgment the superior of a court was sub- ject judicial in any review court. The of the error attorney general, which accepted upon by was and relied the United States Court as basis decision, for its the lay in interpreting majority our denying decision not as the judicial to all simply denying review but as habeas corpus as inappropriate, suggesting while as mandamus the appropriate, vehicle for But, previously review. shown, our court made and holding. Every intended such of member our court knows majority that the intended to that hold the ruling agent administrative subject was not judicial If review. our holding court had contrary intended a judicial petitioner entitled to a review the
—that the was holding; e., i. agent’s determina- administrative identity legality place and the tion of detention supra)—I jailer 1487(5), 1493, (see Pen. of his §§ majority if reasonably that at that time a think it certain corpus court have held that habeas was not all would remedy. court, I sure that no member of the proper am suggesting decision, contemplated that the deci- making his theory that sustained on it admitted sion should be agent’s ruling that for and mandamus as review contradistinguished habeas was the vehicle from review. error, perpetuate encourage court is to and con-
Unless this fusion, delays procedural griefs, and both cumbersome elsewhere, in the of criminal law and administration procedure in penalty cases the and exclusive death correct pointed corpus—should cases as out and this—habeas augmented by an rather than abandoned or addi- adhered to procedure. tional trial court application corpus, rendition previous
In the for habeas entry determining judgment, jury, after trial alleged and it was petitioner to be insane were further averred petitioner (as date) was and not denied that still insane. ruling agent Unless the so-called administrative held is, had been as was then petitioner restored entirely beyond judicial reach, majority, then habeas direct, proper, plain, the corpus was and still is the remedy. In re that had been the the exclusive Until Kellogg (1890), 87 Cal. law since Cochran 677, 12 P. L.R.A. 104]. shown my
It is view that under circumstances here only proper desirable corpus is the most remedy. already remedy provided had the Petitioner has did the Penal The warden 3701 and 3703 of Code. sections belief; insane; was he acted petitioner believe that petitioner’s sanity duly brought to trial was insane; judg- petitioner jury; before found duly new trial decreeing entered; no motion for ment so was remains appeal taken; and no was made fully operative outstanding, unless valid *24 or he has recovered his not recovered his Whether question question. legal sanity is the That is the fact decisive determination; legal upon depends fact that custody petitioner be in the as to whether shall hospital or that of the warden of corpus established, prison. convenient, Habeas is the avail- remedy try legal ordinary able out the factual and and both issues. gore hand, the other if court
On is to itself the other dilemma, horn I then, indicated, of its as heretofore think original insanity proceedings (all that in had themselves . . “after . [petitioner’s] delivery to warden for execu- particularly light tion”), judgment of the solemn based jury’s verdict, constitute, law, “good on the as a matter of reason to . believe a defendant . . had become insane” delivery hence, “after his and, the warden for execution” agent if an thereupon administrative and thereafter to differ with such determination, assumes one of two things inevitably (at ruling should follow least his is chal- lenged) : judgment Either respected upheld should be and against agent as proceedings the administrative or should competent jurisdiction had in a court of to set aside and annul judgment supersede or to equal with of at one least and authority—one later which we can know is on the based same legal insanity standard of as superseded. was the one to be judgment that had been petitioner entered decreed that insane, committed him to the state for the crim- inal insane, adjudged that he be there confined “until his reason restored.” petitioner The basic contention of by lеgal that his reason, standards, in fact been If restored. truth his reason, standards, has not been restored already fully protects rendered against him execution insane; while new judgment to that add nothing; can effect quickly the new one could be set aside one; as the old it would prima have no more facie value ultimate than the old one. There then occasion for no a new trial under section sequitur. 3701 et But if truth and upon legal standards has recovered reason, easily promptly can fact be ascertained determined with legal finality in proceeding. There is inviting occasion for the uncertainty, appeals circuity, delays other attendant added trial sought here to be innovated.
For the reasons stage stated it seems obvious at prosecution and under the circumstances which have enumerated, been application inap- for mandamus is propriate. It inappropriate because the it seeks *25 jury Phyle; he has had trial already the been accorded
has made; adjudged insane is been provision for which fully stands, efficacious—if judgment as and the still judgment pro- under new legally insane—as a new remains vehicle ceedings simplest And and most direct the could be. by determining he is still insane the stand- for whether by petitioner, appeal the and ard, the one which avoids delay, ordinary is one of causes of other indirection and corpus. following suggested newly undesirability of The total for habeas of expеdient substituting mandamus or of independent procedure (as additional setting up it as an judgment of proceedings after a method for review of trial insanity proceedings pursuant to Penal section 3701 must sequitur) consideration what emphasized et is consistency If we rationality are to obtain: follow one, is a remedy petitioner that the seeks here assume outstanding judgment, then technically, notwithstanding outstanding judgment surely it would seem to follow weight, prima significance; facie some must accorded some law, establishing, a matter of it be considered as should “good believing petitioner reason” to be insane. exists legal insanity, adjudicated, presumed once is to con General p. 363; contrary (14 is shown. Cal.Jur. tinue until § p. 751; (1917), Baker 176 Cal. §121, 28 Am.Jur. Estate of The judgment, itself, P. constitutes believing Phyle empha “good reason” for to be insane. As opinion Court sized in the the United States nor the U.S.) is of the warden (p. 443 it not the belief insanity right jury trial must control the to a which fact sequitur be if the under section et considering said: “In what issues available. The court mind proceeding, be in a mandamus must borne mandatory duty initiate under a warden is ‘ insane, but there proceedings, not a defendant is when when good (Italics he is insane.” are those reason believe’ court.) “judicial available proceedings” And the so made mandatorily to encom expressly are made the statute “ to be pass jury trial. court must at once cause sum [T]he jury regular list ... impaneled, jury moned and from 3701.) inquiry.” (Pen. Code, persons of 12 to hear such § “good duty obvious: since warden then would seem insane, petitioner the belief that reason” exists for power try fact; out the ultimate that fact warden has no If jury. must mandamus be available be determined warden, here, shown has no discre- under circumstances again pro- tion the roundabout to do otherwise than initiate ceedings could for another trial and which be, according to the aside majority, at once set special superintendent. But whether the warden initiates such newly proceeding suggested pro- petitioner, cedure, right given hearing to a some hind a trial court, and, court, appeal since it is in a trial he has a *26 in the of hand, event an decision. the other if we adverse On statutory remedy adhere to the traditional of corpus the is well defined and It affords direct. ample protection expeditious procedure to both the con- (and demned the The protection State. of the state against court) groundless the applications simple; is that which constantly applications we use in other the writ. require We prima showing evidentiary facie facts and do not issue writ allegation on the bald of a conclusion or By ultimate fact. way example, application when for the writ ground on made of denial due in that the prosecution has introduced upon perjured and relied testi- mony, knowledge with require of its falsity, than we more conelusionary averment of fact; the asserted ultimate we require specification the evidence detail and of the showing circumstances knowledge falsity by prosecu- of its tion. A prima similar specification facie evidentiary matters required should be in applications for the cir- writ under cumstances shown here. present case Duffy is not controlled Williams (1948), 32 Cal.2d ques case 341].
tion of prisoner condemned to death was raised by application first time for the writ of mandate. There was there, here, not as there has been a trial and an existing, prima at least valid, judicial facie determination that prisoner was insane. Whether mandamus is, not, available application as a an first instance as in the Williams case we need here consider. I affirm reasons above stated would
For the ground solely that under the circumstances shown inappropriate, and habeas mandamus is is the remedy; majority retroactively, ax>propriate, but are to adopt suggestion attorney general were, as it Supreme Court, and now assumption of the United States exclu- remedy, whether appropriate is an mandamus hold that reversed. judgment should be additional, then the sive or J., Carter, concurred. August 25, rehearing was denied for a
Appellant’s petition rehearing. Sehauer, J., for a voted Carter, J., and 1949. Aug. 10, In Bank. 17946. 1949.] F. No. [S. W. DROTLEFF, Respondent, v. CHARLES HERBERT J. al., DYER et Defendants; HAROLD al., RENSHAW et Appellants.