*1 MORGAN, “discharged” dis- separate in water servient J., dissents estate. latter, opinion necessary To do the senting filed. done the in nothing former. I find record that defendants “collected” ei- water MORGAN, Judge (dissenting). necessarily unnecessarily. ther That true, judgment being should be for defend- my respectfully I dissent be- because of ants. lief that defendants’ action consistent “com- law of this under the enemy pertaining mon to surface doctrine”
water.
Recently, City the Kansas District Appeals
Court of had occasion to consider Special in Camden Road Dis Ray County Taylor, trict of v. S.W.2d Respondent, STATE Missouri, Court, therein, (Mo.App.1973). re v. inception viewed the doctrine from its Senion Appellant. Joseph KEE, clearly scope For articulated thereof.
instance, “Haferkamp [2,3]: 1.c. 98 No. 58317. Hill, City (Mo. Rock S.W.2d 620 Missouri, Supreme Court of 1958) Vouga, and Reutner v. S.W.2d En Banc.
34 (Mo.App.1963), as well as the cas cited May 13, 1974. es chronologically tracing judi Missouri’s Rehearing Denied June cial history enemy doc ‘common trine’, support undisputable conclusion proviso guarding attached to
against water, diverting surface
one pru- ‘exercises reasonable care and (Abbott,
dence’ in so doing supra), [Abbott K.C., Co., Mo. 271 Ry. St. & C.B. J. not, modify (1884)], any way,
limit the and inherent right basic constitut-
ing the core heart and ene- ‘common
my may doctrine’ that a landowner ward
off doing surface even though water so proviso,
he damages neighbor.
that one ‘exercises reasonable care
prudence’ doing (Abbott, supra), so solely
lends prohibits itself to and unneces-
sarily collecting and discharging surface damage adjoining
water of an own-
er. Unyielding aphasia, semantic proviso
referred to does not limit or modi-
fy enemy prevailing ‘common doctrine’ respect water, Missouri with to surface
but unique rather it enunciates and limit-
ed factual situation to which the ‘common
enemy application.” doctrine’ no plaintiffs
For prevail under the exist- law,
ing showing had that de- to made unnecessarily
fendants “collected” and
BARDGETT, Judge. is whether question to decided The 552.040, 1969,1 re- which section RSMo quires the director division mental diseases of of- guilty of a criminal who is found not defect or fense disease reason of mental facially uncon- excluding responsibility, stitutional. Joseph Senion defendant-appellant
The application in filed circuit court Kee an custody direc- for release from pur- tor mental diseases the division of Appellant’s 552.040(4). to section suant he not application alleged (1) that did rendering him mental disease defect dangerous others and that to himself or not conform his conduct unable to law, that his requirements (2) the division original commitment to diseases, was or- which commitment pursuant to dered sec- the circuit court violated 552.040(1), equal protection provisions XIV, Constitution, United States Amend. require 552.040(1) section suf- of fact that requisite from fered mental disease He the time commitment. 552.040(1) contended because section provide for such a determination facially it is unconstitutional. evidentiary court held an circuit present at which with found under counsel. court evidence had not recovered further held the mental disease and Kee section to be constitutional. 552.040 appealed section has and contends that States 552.040 violative of United Constitution, Amend. XIV. jurisdiction, Mo.Const. This court has Danforth, Gen., Atty. Michael G. C. John V, Art. Sec. V.A.M.S. Gen., City, O’Neal, Atty. Asst. Jefferson petition previously for writ filed a Kee respondent. corpus the U.S. District of habeas Missouri for the District of Boardman, Western Louis, appel- Richard St. premature for failure was dismissed as Society of Legal lant Aid St. Louis. 1969 and are to RSMo V.A.M.S. to statutes References exhaust Kee had not contend on committing state remedies and does appealed previous applica- appeal denial of an the trial erred tion for section release under 552.040to that he not recovered Peterson, appellate dangerous Missouri Kee court. that mental illness that he F.Supp. (W.D.Mo.1970). Thereaf- to others and cannot conform conduct *3 petition. short, ter Kee it requirements filed the to the of law. instant appears accepts appellant that the factual Very appear in few facts the record on mental defect as of the determination of the instant motion and briefs. From the agreement robbery date of the and that record and in this briefs filed case and the continued to the date of trial Peterson, memorandum in Kee v. su- order 16, 1973, judgment instant of on the March pra, appears underlying that the factual motion. situation Kee had as follows. charged by robbery Appellant’s information with in the appeal contention on is that first degree. July 19, his following On confinement is unconstitutional information, filing of the or- on January plea Kee was date was 1968—the his City dered accepted the circuit court of the of and he was committed—there was St. Hospital Louis to the Missouri no finding State of was fact that he No. 1 psychiatric for Pre- suffering examination. that date still from the mental sumably that examination mental was or- condition suffering that was from on dered on motion of Kee. After men- date of the offense. tal completed, examination was Kee en- Section 552.040(1) require that plea tered a guilty by of not reason of such held or that the court mental disease or defect and filed notice that, find commitment, on the date of that he pursuant had no other defense suffering defendant is then there still section Shortly 552.030(2). thereafter, on from the mental defect that he had at the
January 23, 1968, appeared person Kee time of the his offense and which and with counsel in circuit court. At that plea of guilty by of mental dis- reason time the court report considered the ease or defect was founded. mental examination, which state Kee agreement, were in accepted appel- It is 552.040(1) the absence from section plea lant’s guilty by reason of men- of requirement circuit court hold tal disease or excluding responsibili- defect a hearing present and make a ty, judgment entered accordingly and com- mental defect that constitutes the for basis mitted custody to the appellant’s facially claim that statute is director of the division of mental diseases unconstitutional under the U.S. Constitu- pursuant to 552.030(2) sections 552.- tion, Amend. XIV.
040(1). ap- proceeding Before a resolution of pellant’s points, there are certain observa- All of the at the hearing evidence tions that made in should be order that application instant was that Kee still issue will remain in focus. This case does suffering paranoid schizophrenia, chapter not involve those sections of that this mental renders him condition dan- which are with the mental fit- concerned gerous others, safety and that he ness of a to understand the na- was still unable to conform his conduct to proceedings ture of in his or assist own the requirements of law. The trial court ques- defense. does it Sec. 552.020. Nor so found. provision the validity of the where, minimum, case is one at a it is determined that a defendant had a agrees that he suffered excluding responsibility from mental defect a mental defect excluding responsibility offense, whether determination of robbery date of the charged plea made on of not facility. other defenses are treatment a mental Section mental defect where plea accepted by the mental for “ 202.010(12) defines illness waived and purpose ‘Men- state, jury, chapter the issue by judge where follows: impaired tal illness’ is a mental state contested. Sec. 552.030. other function and includes alcoholism or position the due appellant’s It drug person so abuse to such extent that a the court process provisions require that and treatment afflicted care present make a others, welfare, his or the welfare of own existing the date of commitment before or not such regard and without to whether con validly committed to and he can be person adjudicated legally incom- deprived fined in institution — petent; . . ..” is that liberty. claim His unreasonable, under section 202.807 imposes an Civil commitment section 552.040 *4 person has arbitrary, presuppose that the between and invidious distinction which, by if a men- done committed an act “civil” “criminal” commitments and and a crime tally person, sound would be Missouri. punishment. criminal authorize proceedings, whether Commitment under sections A criminal criminal, subject the are both or civil unless cannot be had and 552.040 552.030 of protection process clauses equal and due charged a person the (1) v. Specht the Fourteenth Amendment. af- offense, the (2) has initiated criminal 1209, 608, Patterson, 605, 386 U.S. 87 S.Ct. de- or of mental disease firmative defense Her v. (1967); 18 326 Baxstrom L.Ed.2d has responsibility, and excluding (3) fect old, 107, 760, 15 L.Ed.2d 383 86 U.S. S.Ct. upon the jury by acquitted judge been a or ex rel. Hoover (1966); State dis- mental specific finding of affirmative Bloom, 841, banc (Mo. S.W.2d excluding responsibility, or defect ease 1971). de- all waives other where the defendant dis- mental acquittal on fenses seeks and proceed “Criminal commitment” accepts the the state ease or defect and proceedings ings as used herein mean those plea. person, under which a who charged offense and who with a criminal criminal prerequisite As to a punish is asserts he not liable to criminal sections 552.030 being under ment ordered offense, because, ment the time of the at 552.040, defend- it is essential that and de disease or suffered from a mental this criminal act. committed a ant have excluding responsibility, who, aft fect robbery. So- first-degree case the act was is upon being acquitted ground, er that oth- robbery any ciety not condone does dis of mental committed the division by a committed er criminal whether act are proceedings eases. In Missouri these relieve person but does sane or insane governed by chapter generally 552 and punishment. When insane of particular 552.040. sections 552.030 and conse- engaged in as a type is of conduct gov proceedings “Civil are commitment” defect, it is reasonable quence a mental through generally by erned sections 202.783 repeated until may it to believe that provi 202.875 and are different so is This is cured. applicable sions to criminal commitments. de- is the defense of essence of the appreciate fect the defendant did point stressed difference or, he did wrong if that what he did was involuntary here that under the civil incapable of know wrong, it was 202.807, commitment, pursuant to section of law. conforming requirements to the afforded civil court must he is men the difference between make Thus prin- tally custody, ill in Missouri in need care criminal commitments judicial procedures in the cipally the fact that under based prior substantially criminal act former there need no differed those available their prisoners it is essen- nearing committed the latter the end of whereas Supreme have committed a tial that the defendant sentences. The Court of held, petition prior hold criminal act. United States “We protection equal er denied of the laws Herold, supra, Baxstrom v. statutory procedure under which said, require “Equal protection does not person civilly ex may be at the committed identically, persons that all be dealt with piration penal of his sentence require made but it that a distinction persons jury to all other review available purpose to the some relevance civilly committed in Petitioner New York. which the U. classification made.” 383 equal was further denied there The court S. at 86 S.Ct. laws his civil an institu commitment to protection in the found an absence of Department maintained application petitioner one of two to the expiration beyond Correction different methods civil commitment. prison term without a determina mentally dangerously tion that he is ill Schubert, 45 Schopf In State ex rel. such as afforded all committed so (1970), Wis.2d N.W.2d those, Baxstrom, except nearing like Supreme rejected an Court of Wisconsin *5 expiration penal of a 383 U.S. protection sentence.” upon attack a Wisconsin at 762. S.Ct. by requires person acquitted statute that a insanity reason of of- at the time of the Schopf Supreme the Wisconsin Court hospital. to fense be committed to a mental distinguished as “A Baxstrom follows: equal protection The court said: “The reading of Baxstrom makes it clear that disapproves only clause and arbi- irrational objectionable what was there was that trary classifications. The classification civilly by was a committed radi- procedure by legislature made the situa- in the instant cally procedure different from the used to tion between commitment and crimi- civil civilly commit only others. The for reason nal nor commitment is neither irrational prisoner this to was that he was a about arbitrary, fact, and, perfectly in reason- complete his sentence. able. equal protection “The denial of arose as petitioner, by “The establishing his men providing a result of two different meth- test, tal incapacity jus under the ALI has ods of civil commitment and rea- with no tified the imposed automatic commitment sonable basis for it. general safety him. Concern for the case, “In the instant in the difference community this at least much. procedure civilly persons is not Thus, between in procedure difference committed but rather the difference arises requir provisions offend the constitutional between civil commitment and criminal ing equal protection of the N. law.” 173 a commitment after verdict of not W.2d at 677. Thus, basis, by insanity. on this Appellant argues that Her Baxstrom v. Baxstrom can be from distinguished old, supra, authority proposition for the instant situation.” 173 N.W.2d at that the differences in Missouri between Kearns, civil and criminal commitments In Chase v. violate A.2d equal protection. Supreme (Me.1971), of Maine Baxstrom convicted was in adopted New second-degree foregoing language York of assault and opinion sentenced Schopf to term of to “In two and one-half and further held: our years prison three in fit Legislature end of has seen and near the distinction our employ procedures term civil and was committed to a state mental in the hospital for the is neither criminally insane without a criminal commitment and release acquit- arbitrary. has a relevance was not
irrational nor
It
Schuster
proper legislative purpose
insanity
which the
ted on a
was con-
to a
but
degree
in
distinction
intended
victed of murder
the second
was
to serve.
years
sentenced to a term of from 25
“As
we found
[State
Shackford
sentence,
life in
serving
1931. While
Shackford, Me.,
A.2d
(1970)]
to New York
Schuster
transferred
defendant, be-
jury
that a
hospital
criminally
state
for the
insane
defect,
of his
disease or
cause
prison
certification of
warden
an act other-
held blameless for
shall be
prison
a single
Schuster was
doctor that
puts
sanctions
wise
opinion
“in his
York
The New
insane”.
exceptional class.
such a defendant into an
parole
possibili-
policy precluded
board
public
special
which the
interest
ty of parole
any prisoner
long
as
as
and release
acquired
the confinement
criminally
in-
hospital
for the
people
exceptional
results
in this
class
insanity
sane.
Schuster disclaimed
judicial
from the fact that there
there was no
determi-
already en-
they
determination
insanity
nation of
other than
adminis-
public safety
their own
dangered the
procedure
trative
mentioned herein.
as a
of their mental
result
conditions
civilly committed
people
distinguished
In the instant case
claimed
only
danger.
potential
because of
his pleading
he suffered from a men-
excluding responsibility.
tal
He did
that the distinction
hold
“We
undergo
in which the
a mental examination
Petitioner,
applying
ment
release
suffering
doctor
him to be
from the
found
exceptional class,
a member of
by appellant. The
mental defect claimed
requirement for the
reasonable
agreed
of the mental
with the results
public inter-
the Petitioner and
court, upon
examination and the
considera-
est.”
report,
appellant to
*6
tion of the
found the
defect
have suffered from the mental
upholding
cases
automatic
Other
by appellant
appellant
granted
claimed
and
ment statutes are reviewed
50 A.L.R.3d
by reason
sought-
guilty
the relief he
—not
(1943).
(1973)
144
and
Gomez
de-
of Bolton
hospi- The court held
the trial
to
authorized the commitment
only
a reasonable
termined
that there was
persons
criminally insane of
tals for the
of-
sanity
time the
as
his
at the
charged
because doubt
to
but not tried
with felonies
However, section
committed.
incompetency
proce-
fense was
to
trial under
stand
find-
ap-
552.030(7,
requires an affirmative
8)
substantially
those
dures
different from
from
ing that
the defendant suffered
plicable
those al-
to other commitments
respon-
excluding
mental disease or defect
mentally ill.
dangerously
leged
on
is based
acquittal,
sibility whenever an
point.
case is not in
designed
though
that defense.
a de-
it is
retri
Thus there
not so much
that the
bution as
from
keep
termination
had a men-
individuals
defendant
merely
tal
acquittal
inflicting
defect and the
harm.
States
future
United
437, 458,
1707,
Brown,
premised
concerning
a reasonable
85 S.Ct.
on
doubt
U.S.
1720,
sanity.
U.S. at 608-
defendant’s
The Missouri section ter went penitentiary statute on to the as sane men. Thereafter, 552.040(4), is not construc- Baxstrom and were to the Schuster placed administratively tion the Bolton court on the D.C. declared insane prisoner adjudicat- finding. Code. Missouri The declara ed directly insanity disease was not related reason of mental proceedings substantially dif can initiate to be criminal case and was perhaps involuntary ferent reexamined released the mo- civil hospi- ment he procedures. arrives at the state release These two cases proc tal. do not hold it is due violative of ess for a support To his Fourteenth Amendment acquitted plea who his contention, appellant cites and finding “insanity” to be automati Specht, Baxstrom, and Bolton. cally committed to a mental institution. In Specht petitioner had not been ac said, Schuster the court at 1089: 410 F.2d quitted grounds suffered solely “We have here the crimi dealt from a mental charged He was defect. nal allegedly mentally who ill becomes aft with “indecent liberties” convicted of er imprisonment.” ours.) (Emphasis that offense which covered a maximum *7 years. Appellant sentence of ten was Specht not sen does not cite a case of the tenced Supreme under the stat United or of this “indecent liberties” States Court ute but was of sentenced under the sex a con- be prior fenders act for ducted an indeterminate time of to commitment in situations day pleads where guilty one to a defendant life without notice and not Supreme full The reason of hearing. Court of the mental disease or and express United there is de- an States said: “The Offenders Sex Act is a fendant of mental not make commission of specified disease or sentencing. Consequently crime defect. ration- the basis for ality It statutory prescribed makes one conviction for com scheme the basis legislature light our in mencing must be considered another proceeding under another policy Act of to certain The Su- person determine whether consti considerations. a preme tutes focused bodily public, a of of Maine threat harm to the Judicial prime or is in mentally an ill. consideration Chase v. habitual offender and Kearns, supra, 278 A.2d “Once a That is at 135: (Vanderhoof a new of fact 903, guilty by People, 147, 149, defendant has found 152 Colo. 380 P.2d ‘not defect’, reason of 904) that the of mental disease or mental ingredient an special policy charged. punishment fense factors The under considerations in- rationally second punishment justify Act is immediate commitment even 552.040, could This court holds that section might a asmuch such defendant behavior, due is incapable controlling his RSMo not violative instrumentality process protection provisions of might or could be an Constitution, others, Amendment might cotdd States United harm to himself or and treat- study, need XIV. be observation accomplishment which, ment for is judgment affirmed. time, hospital confine- possible
the shortest states ment Chase further is reasonable.” MORGAN, DONNELLY, J.,C. is that between “it unavoidable FINCH, JJ., HOLMAN, HENLEY and as to defend- verdict and the determination concur. a mental time ant’s then condition existing lapse A.2d at 134. must occur.” 278 SEILER, Judge (dissenting). in result in Originally I concurred case, the Bolton we cit- distinguishing In case, theory majority opinion in this on the which al- ed the feature of section 552.040 post-commitment hearing a on peti- individual to lows for committed question insanity process. due satisfies immediately upon tion for reexamination However, hear- after further reflection and Supreme arrival at the institution. ing argument in the case of oral State its aspect of Court of found this Wisconsin Kent, substantially which raises No. significant be factor statutory scheme to a issue, that due the same I am convinced proc- compliance determining with a unless de- will not be satisfied ess, stating: “This suffi- factor alone fendant, acquitted basis of mental distinguish instant cient to situation alleged at the time of the disease or defect procedure in Bolton questioned from the offense, ques- afforded Furthermore, Specht. . . . I sanity prior tion of to commitment. permis- Bolton the that it was court found and with- respectfully therefore dissent prisoner be detained for sible for the my draw concurrence. deter- period reasonable without present condition. The mination of country imprison people do not in this We would purpose period of this detention them. against first case proving So, too, pris- for here examination. then them first and We do not confine hospital, but oner sent to central prove they should be released. make them petition examina- right for an do, simply the defend- But here we Thus, this tion the minute he arrives. successfully interposed the defense ant has which is almost right situation creates a guilty by reason of mental disease of not provided in Bolton. identical the one being a close to defect. This comes prisoner can be both situations the using for the defense. punishment form of judicial determination ted without a say If that the commitment we could Bolton, this present mental condition. in time the offense always enough close period a reasonable reasonably said charged, so that could *8 length of examination. Wisconsin existing at or defect that the mental disease prisoner period is determined persisting still the time offense was for the exami- petitions himself. When commitment, per- then of the time of the by a nation, gets haps process it. be satisfied due would prompt post-commitment hearing. But many where is that there are cases court are sat fact majority of the “Thus the passes period years or procedure ques two three more that the Wisconsin isfied offense to the time de time of the as a from the here is not unconstitutional tioned trial, inexorably yet rel. the statute ex law.” State process of due nial put a in what N. commitment. To Schubert, Schopf 45 Wis.2d on the unfound- equivalent prison W.2d 678-679. assumption to- ed that his mental condition
day as it two or three is the same opin-
years ago process, my due
ion. addition, he is once committed to insane, hospital criminally hearing, put proof we then burden prove
and effort on him he does likely
not have and is not to have mental or defect him rendering dangerous
disease
or unable to conform. not toler- We would taking property away
ate him man’s
under conditions these and we should not
do so with his freedom. court, however, post- believes the hearing satisfies due while nature of
discussed, it seems to me that if it tois any process,
afford then that opportunity
must be an genuine for a test
in court of whether the defendant should released, turn means assistance counsel, including appointed counsel for
indigents, unimpeded courts, a access to the
prompt hearing application, inde-
pendent psychiatric examination, compul-
sory process, discovery, confrontation and witnesses,
cross-examination of and ade-
quate findings by the trial court. Missouri, Plaintiff-Respondent,
STATE of
Raymond JOHNSON, Defendant-Appellant.
No. 35051. Appeals,
Missouri District, St. Louis
Division Two.
May 28,