*1 MONTANA, STATE OF Respondent, v. Plaintiff OLSON, Appellant. L. RAYMOND Defendant No. 14533.
Submitted March
1979.
April
Decided
MR. SHEEHY delivered the of the court. opinion JUSTICE This is taken appeal from judgment denying petition for release from the State in Warm Hospital Springs. Findings fact, conclusions of law and judgment were entered on August 1978, in the District Court of Lincoln County by Honorable Robert M. Holter.
In 1969 Olson was
with two counts of
He
charged
rape.
gave
notice of
intent
on the defense of
rely
insanity. The case was sub-
mitted to the
and a
verdict was returned.
jury
guilty
appeal
On
were reversed and a new trial
judgments
was ordered. State v.
156 Mont.
In lived in Great 1977 Olson From 1972 until went to Falls. Great had a job, telephone He obtained family. with his wife Falls his own name. He driver’s all under and a license directory listing, of the Moose Lodge, and the local chapter a local union both joined name. his own using again 17, 1977, the issuance of an order was entered for February
On bench warrant directing: ORDERED,
"IT IS HEREBY arrest of the De- captionéd Warrant issue for the “That Bench Olson, fendant, he forthwith be returned and that LeRoy Raymond should be whether he to this Court purposes determining without Warm custody Hospital released from *3 added.) Bail.” (Emphasis was not completely of residence in Great Falls
Olson’s period unex- or of 1976 Olson without incident. In October September at about the of one Karla White bedroom pectedly appeared to, told left when a.m. while she was Olson sleeping. 2:00 3:00 contends, male compan- the of'White’s although, presence his retreat. ion have hastened may 1, 1977, same Olson assaulted the on September
A later year attack, Olson grabbed in the hours. In morning woman early concrete, down, White, face into the her and shoved her knocked did to snap apparently try to break her neck. Olson threatening a vacant field. Although her off into White’s neck before dragging assault, assault continuing physical no sexual Olson’s there was claims he Olson police. the arrival of only by was interrupted ex-husband, Olson’s of her was over White’s treatment upset with arrest and being charged friend. This incident led to Olson’s were The charges and unlawful restraint. misdemeanor assault dismissed. ultimately 17, 1977, order
Although February directed that there be to determine hearing Olson’s status and he was although taken to week, and held in for at Kalispell jail least a there was no hearing and he was returned to the State summarily Hospital. 27, 1977, December
On Olson He petitioned release. examined Dr. Hamilton subsequently C. Pierce and Dr. George Gelernter, both qualified whose in- psychiatrists, were reports troduced as exhibits at the on 1978. In addition hearing August evaluations, to these and his wife testified and 35 letters of co-workers, personal reference from Olson’s supervisors, friends were introduced as exhibits without an objection. Finally, interim social history and mental status examination report evalutation prepared during confinement Warm Springs in late 1977 were submitted on Olson’s behalf. The substance of these as well as of the reports evaluations the two private psychiatrists was Olson suffered no mental illness and should be released. State, release,
The petition introduced opposing parts trial, of the evidence from the psychiatric rape specifically Wetzler, of Dr. with from Karla along White, the woman Olson attacked in allegedly
The District Court denied Olson’s in its petition citing findings of Dr. Wetzler in 1970 that had a “grave defect, illness,” that the two incidents grave Karla involving White were similar to the and that had original rapes, received no treatment since 1972. The final psychiatric finding and conclusion of the District Court were:
“5. That this Defendant is now from a mental disease suffering or defect which renders him unable control himself at times and which results in his to of others. being danger *4 of That the Petition of the Defendant for
“[Conclusions Law] release from the Montana State should be Hospital denied reason of the fact that this Defendant remains a to the danger of others.” person Hospital. Warm State returned to was ordered
Olson Olson appeals. the denial of his petition, From whether the for review is that the issue asserts broadly breaks this The State his petition. erred denying District Court pursues: and addresses the points issue down from testimony of Dr. Wetzler’s the transcript 1. Whether was admissible. trial prior on the of the testimony could rely
2. Whether District Court attacked. allegedly woman Olson the District evidence was sufficient to support
3. Whether the Court’s judgment. release, denial of his petition from
By appeal of two witnesses by the use of the challenges testimony specifically (1) of Dr. Wetzler as the lower court: the transcribed testimony trial; (2) the of Karla given rape testimony Olson’s to two incidents her and Olson. We- will White as involving each consider the of testimony separately. as to the Dr. Wetzler. This
Testimony testimony presented of consisted of the transcript District Court State exclusively Wetzler’s at Olson’s trial in 1970. This based on Wetzler’s two-hour examination of Olson in January since filed any 1970. Wetzler has neither examined Olson evaluation, on sort of nor did he at the updated appear hearing short, In this transcribed relates petition. condition January Olson’s mental as 95-508, R.C.M.1947, for release under section Olson petitioned MCA, now sections 46-14-301 -304 which established through for commitment to and release from the Hospital procedure at Warm on the mental Springs following acquittal ground call for clearly disease or defect. The section provisions a committed person determination of the mental condition of 95-508(1) (hearing the time of the for release. E. section petition g., condition”), the ap- “to (2)(requiring determine present after the of two to examine psychiatrists pointment 46-14-302(2) 46-14-301(2) of a now séction filing petition), *5 328 366, Accord, (1966), Rouse v. Cameron 125 U.S.App.D.C.
MCA. F.2d 451, 43; (1978), 175, 376, 43, n. 373 461 n. State v. Cuvelier 185, 189; 282, 100, (1978), 394 A.2d State v. Fields 77 Conn. N.J. 574, 585; 408, (Colo. 1976), 390 A.2d v. Giles 557 P.2d People 411-12. not decided the exact question this has
While
Court
perhaps
Olson,
con
have decided that evidence mental
we
presented
crime,
v.
the commission
State
dition
several
before
years
456, 459,
(1978),
or as of several
Mont.
580 P.2d
Neel
177
crime,
District
of a
ex rel. Main v.
the commission
State
after
years
We are on the at the commission of a crime is inadmissible always dition later of mental condition at some point upon petition question 95-508(1), now section release. For under section example, MCA, 46-14-301(2) committed to Warm within 50 days is entitled to a following acquittal hearing Hospital condition. In such to determine his mental present confinement cases, to the District Court the earlier be testimony may helpful mental health. v. Turner acquittee’s evaluating People 713, 715-16, 379 N.E.2d 62 19 Ill.Dec. Ill.App.3d and the evaluation 379-80. As the interval between original however, this earlier for release subsequent petition lengthens, case, i,ts value. where eight years loses In probative evlauation and the subsequent peti- between the elapsed original witness, release, with no examination by tion intervening the witness in of the earlier value probative condition of Olson is questionable. mental judging present the other is strengthened by conclusion Our in this Included the District Court. before evidence in the record other psychiatrists of Olson were evaluations evidence Wetzler, evaluations, that of Dr. contrary These psychologists. late 1977 early of Olson in on examinations based were evaluations are The later Warm Springs. return to after his from any no suffers longer that Olson their findings unanimous in released from con- that he should be or defect and disease at Warm Springs. finement
Thus, Pierce: words of Dr. Hamilton in the *6 in this no of mental illness patient I see evidence “In summary, that could be illness to the degree and I doubt if he ever has mental He is an impulsive a cause of his antisocial activities. considered are weakened weak controls which and he has relatively not as ill now more to drink. I do see him mentally tendency or in the past.” Falls, Gelernter, concluded: also of Great
Dr. George illness. In- no evidence of serious emotional “At this I find point, no would seem to serve purpose carceration at the Hosptial State custodial, that no ‘treatment’ there facility other than since there is of his re- charges to him. If legal aspects would be the meaningful incarceration, at the State it would more appropriate seem quired incarceration.” if the is purely Prison in Deer Lodge purpose of evaluations had before it a packet the District Court Finally, these evalua- Warm In Springs. staff at prepared by psychiatric worker, tions, the ap- “question[ed] social examining The discharge incarceration.” current propriateness [Olson’s] others states: Xanthopoulos Dr. summary signed by Harry Findings: “Significant he was suf- team that Region was the the Forensic findings
“It and that he was appropriately from no mental disorder fering in the ...” hospital Hospital at the State the staff Olson diagnosis
The final disorder. that he has no mental states testimony presented by of the psychiatric Comparison [I] conclusion leaves no possible with that presented by than that has established of the by preponderance other that evidence entitled be released. Section psychiatric 46-14-302(4) 95-508(3), now section We R.C.M. MCA. therefore to an examination of the of Karla proceed testimony White. Wetzler, Karla White. Unlike Dr.
Testimony testimony of Karla White is not to attack on the basis subject it is not or relevant. Her concerns incidents timely within of his Olson which occurred about fifteen months involving for release. One of these incidents resulted filing petition to Warm is un- Olson’s arrest return The Springs. See, to Olson’s case. v. Giles doubtedly damaging People (Colo.1976), 557 P.2d our conclusion as to the Given however, ques- current value of Dr. Wetzler’s 1970 testimony, alone, tion becomes whether White’s testimony, justifies standing at Warm We conclude Olson’s continued confinement Springs. that it not. does earlier,
White, two noted testified concerning separate which occurred a In the first year apart. involving incidents incident, uninvited in White’s bedroom in the Olson appeared to rouse later he had been morning. explained trying He early failed, her mother an hour and when he he called White about *7 him to check on her. Olson did leave when who asked supposedly and the man- to White. The circumstances this incident told a to his behavior only superficial similarity ner Olson’s possesses sexual attacks in 1970.
The second to White testified was the time incident which car, out of her as White was suddenly appeared getting down, knocked her her face into the concrete before and pushed to her to a vacant field where he continued press dragging nearby what said to her her face into the White’s recount of grass. his attack during illuminating: is were talking. What next? A. We more or less
“Q. just happened me, to and if I wanted asked if knew he was doing He me I why said, ‘Yes, know, my said he it to and I I do.’ He was doing for sister. me it not me he What next? A. He told that was
“Q. happened husband, I that was and that should my get was it anymore; after and not and just and run towards the road turn around up along added.) run.” (Emphasis This was no assault or conduct kind. any there sexual
Again, to the earlier attacks and very ap- incident also is dissimilar sexual a its but had motive not sexual assault parently revenge for for v. 117 N.H. State Hesse apparently wronged. friend Cf. (defendant, of assault on black acquitted 373 A.2d man a black after from insanity, escape because assaulted man with assault charged only simple hospital). restraint, were even- unlawful both misdemeanors. Both charges dismissed. tually as at the time of special
White’s well as Olson’s status to for the attack leads us review the entire scheme statutory acquitted commitment and release of of crime because persons or defect. we speak mental disease status of which special that of an on de insanity self-imposed “probation” acquittee facto of over five from the time years from Warm period ar- from the State until his Hospital August walked away rest on September as to review a conflict in these statutes initially
Our reveals confine- criminal or behavior alone warrants whether antisocial ment at Warm The Revised Commission Comment Springs. 95-508, R.C.M.1947, release states: section governing the criterion “. . . It seems to make preferable dangerousness committed that the provide continued rather than custody when sanity be or released restored discharged may disease his mental the mental laws. Although defined by hygiene be dangerous still such greatly improved, person may may other than factors in and background because of his personality Also, means for provides possible mental disease. such a standard *8 332
the control of the occasional defendant who successfully feigned mental an gain acquittal. disease The prescribed procedure both the and the protects an public by providing defendant for examination ac- independent psychiatric defendant before release, tion on the for then either application summary favorable action on the or a full application hearing.” (Emphasis added.) comment, itself,
This as well as the of section 95-508 language would seem indicate that the mere fact of criminal assault on White is reason to warrant his' continued con- enough finement. The definition of mental disease defect excluding 95-501, R.C.M.1947, contained in section now responsiblity 46-14-101(2) MCA, section indicates otherwise: “(2) in this As used the term ‘mental disease or defect’ chapter, does not include an manifested abnormality only by repeated or otherwise antisocial conduct.” criminal real, The conflict between these is more than provisions apparent however. the intent of these to deal with an statutes is Obviously, who, condition, class of because their exceptional people are not to be held liable for acts which otherwise would be con- (1971), 323, 331, sidered criminal. v. Taylor 158 Mont. 491 P.2d 881. The crucial criterion inclusion in this case is of a mental disease or defect possession excluding responsibility. 95-501, R.C.M.1947, MCA; Section now section 46-14-101 Powell (5th 1978), v. Florida 579 F.2d Cir. under this Clearly, statute, the mere commission of a criminal act place does class; actor in this neither should the mere commission exceptional a criminal of this by person act once deemed be member class be contrued as evidence of his continued inclusion necessarily in this class.
In Rouse v. Cameron 373 F.2d U.S.App.D.C. with a the Federal Court of was faced similar situa- Appeals tion and a similar scheme. That court concluded: statutory under
“. . .
committed and confined
involuntarily
A person
to release if he has ‘recovered
D.C.Code
24-301
entitled
§
*9
be
himself
not in the reasonable future
dangerous
will
sanity
has
dangerous
so confined
some
‘person
pro-
or others.’ That
alone,
not,
his
warrant
continued confine-
does
pensities
standing
mental
institution under
24-301
ment
in a
§
government
.
. . must be related to or
D.C.Code. The dangerous propensities
”
at
U.S.App.D.C.
out
an abnormal mental condition.’ 125
arise
added.)
344,
In discussion Goldstein regard, following Illness, (1960) 70 Yale 237-38 Mental Dangerousness L.J. is informative:
“. . . what is to be of those reason acquitted by made disposition who remain will be insanity dangerous meaning —whatever to that word—but who ‘recoverd least to sanity’ given extent that could not held had been com- longer be they they civilly mitted? Continued detention would be the answer. But to statutory would solely snap hold patient potential dangerousness for line and detention retribu- thin between detention therapy an be tion . . . Not to release such would persons equate effect an illness. Since with ‘dangerousness’ undefined undefined there can be no such equation, decision not to release on solely the basis of potential would be dangerousness like decision not to discharge tubercular no patient though longer infec- — tious—because he is a killer potential . . checkforger .” added.) (Emphasis
Evidence that Olson’s attack on White was related to his mental disorder diagnosed fact, in 1970 is in this case. lacking In had Olson first come the attention of the as á result police of his attack on White and he at that time chosen to on the rely defense of insanity, defendant would have been unsuccessful because who everyone examined him found no evidence of mental disorder. Instead the evidence is to the effect. opposite All of the psychiatric and psychological evaluations of Olson performed *10 after his recommitment to Warm were Springs made with full of his attack on knowledge White. Even with this knowledge, these experts determined that Olson suffered no mental disorder as of the time of their examination: connection,
In this the provisions 95-508(4), of section R.C.M.1947, MCA, now section 46-14-304 are relevant:' If,
“(4) (5) within five years after the conditional release of a com- determines, mitted evidence, the person, court after that hearing the conditions of release have not been fulfilled and that for the of the or for safety person the of others his safety conditional revoked, release should be the court shall order him to immediately be recommitted to the superintendent Warm state Springs hospital, subject release in discharge with only accordance (2) (3).” the procedure above in subsections and above, As noted Olson’s status at the time of his attack on White 1, 1977, on September was unique. He had walked from away Warm in Springs August 1972 and had lived in Great Falls for the
next five years. this During period, Olson found a job, a joined union, joined the local Moose Lodge, apparently established a more compatible, understanding with his relationship wife. The to which degree Olson fit into the community attested to friends, 35 personal reference letters from his employers, and co- See, at the Hill v. State hearing. into evidence workers admitted 190,205. 358 So.2d (Fla.App.1978), conditional,, sense, then, a was that of his status
In a real very, self-determined, releasee, that he frankly the condition being albeit in specified with the law. For five-year period avoid contact 95-508(4) to this condition. Olson lived up section course, ap- this section is directly We that recognize, Nevertheless, to a intent Olson’s status. person plicable n legislature a limit was to create time this section enacting the release of cannot revoke automatically which the State beyond Warm and subsequently once committed to live did in Great community. successfully returned Falls, conditions, than longer under his self-imposed successfully limit. To him from his recreated time take statutory to an confinement in Warm Springs life and return him indefinite charge carrying on the sole basis of a misdemeanor assault Therefore, we offends this intent. maximum six month sentence this late date to think it was incumbent the State at upon than to show come forward with evidence stronger presented requiring that continues to from a mental disorder suffer at renewed confinement Warm Springs. that had to that
The State assumed it show only apparently more had a disease or defect one time antisocial act without having had committed an recently two. was an erroneous between the This relationship show far, Olson has shown thus On evidence assumption. presented to his of the he is release. evidence entitled by preponderance *11 Court, however, It is not the this to function of direct the release of to persons committed Warm State that Springs Hospital; 95-508, R.C.M.1947, to the power District Section belongs Court. MCA; now sections 46-14-301 -304 Zion through Application of 468, (1978), 1084, 178 Mont. 585 the P.2d 1090. Given seriousness committed, of the offenses for which the fact originally he has no that treatment since the time of undergone psychiatric two his “release” from the incidents Karla involving hospital, 336
White, and the fact that the on an proceeded erroneous as to its in assumption burden we proof previous hearing, conclude that this cause must be remanded for further testimony on specific question whether Olson’s antisocial behavior illustrated incidents Karla White involving rela- any to any mental disease defect tionship or suffered currently (1978), 387, 354, Olson. v. Dublin 63 People 20 Ill.Dec. Ill.App.3d 31, 35; (1974), 177, 380 N.E.2d Miller 46 A.D.2d Application of 628, The N.Y.S.2d 633-34. to be point determined District is Court whether Olson’s “dangerousness,” if present any, is related to or out of the abnormal mental condition growing exhibited in 1970.
The mere fact
have a
may
towards
tendency
antisocial behavior
not
is
sufficient to warrant his continued
See,
confinement
in Warm
v.
Springs.
Harris
United States
1976),
356 A.2d
If
(D.C.App.
632. Olson does not suffer from
behavior,
a mental
disease
defect which causes
is no
there
reason
to include him in
continuing
class of
exceptional
U.S. 107,
(1966),
people discussed earlier. Baxstrom v. Herold
114-15,
760, 764-65,
86 S.Ct.
15 L.Ed.2d
626-26. The
ordinary
of the criminal
are
punishments
justice
adequate
system
conduct,
to handle
criminal
Olson’s future
in such circumstances.
We also
our that the District Court
not
to
point
limited
either
recommit Olson Warm
or release him
unconditionally.
Section 95-508 gives the District
authority
Court
release condi-
tionally persons committed
the State
such
Hospital by placing
see,
conditions as it deems
on the
necessary
release. But
Applica-
.,
tion
. .
Zion
. Mont. . .
585 P.2d
35 St.Rep.
remand,
1475. On
the District
Court should
foreclose the
of conditional release as a
possibility
means of
proper
balancing
Olson’s interest
against
interest in
liberty
society’s
protection
Zion,
from potentially dangerous persons.
585 P.2d
Application 1478;
State,
at
35 St.Rep.
Hill v.
337 HASWELL and DALY and MR. CHIEF JUSTICES JUSTICE concur. SHEA dissenting. HARRISON
MR. JUSTICE dissent, I aware of difficult faced the problem I am the and is the one presented only the solution majority, perhaps However, time to focus on the absurd available. has come now the mental courts are in when positions put interpreting condition defendants in to determine their criminal trying liability. as noted in the
Appellant, opinion and majority in prior Court, to, case before this is a know Prior rapist. and noted our in State v. Olson opinion 156 Mont. 480 P.2d he with an assault in a charged adjacent to county Lincoln Coun- and allowed to to a ty lesser offense. The plead of defense in the above case indicated that he was psychiatrists entitled to the of section 46-14-101 provisions 46-14-304 through MCA (formerly 95-509, 1947). section 95-501 through R.C.M. Dr. Wetzler in- dicated that he was a who had: dangerous person defect, illness,
“. . . a a serious of his in- grave grave problem his own ability accept sexual more than or I can feelings any you or control ... I cannot perhaps accept hunger predict outlook. I it be would would and one . say grim guarded . . Because long duration his illness as we are particularly again dealing weakness, awith personalities defect... Because he is personality to be at He at dangerous large. has no control times. This is what about, defect, control, we are his talking his illness. If he has shown these manifestations since and he is now years age, what, 27, 28, Test, evidence of plus the Minnesota we Multiphasic have conclusive that this proof man needs be confined.”
With this before the court and later for available con- sideration and with attending psychiatrists, little or no treat- there, ment the State Hospital we now during year spent have before us that he should have never been sent true, If that is Hospital. fraud was on the perpetrated court when it found appellant not reason of guilty by Had the insanity. would faced appellant
trial court not accepted testimony, been to a term long retrial and could have convicted sentenced which more dif- escape considerably in the State Prison—from *13 it is from the Hospital. ficult than State that a at the State Hospital I am distrubed patient In addition that institution away can walk from dangerous” "designated authorities, or of to the to the any with no notification committing we in the result that have law enforcement authorities State. The is period. a in the for a large five-year such person case, of respon- breakdown complete we Somewhere to protec- are entitled more They to the of this State. sibility people been of this has ex- the women State—than particularly tion— of to on the State authorities Hospital hibited here. Failure the part evidences, gross in my opinion, law enforcement officials notify and of rights safeguard reckless negligence disregard the public. of in other
As a result such actions state officials by jurisdictions, inmates, survivors, are seeking such or their persons injured by the inmate while at the state for done injuries redress against on issue of the 2 of 2d gives guidance Restatement Torts large. at in- of or the officials responsible owed members boards duty any 319, who such of Those “Duty stitutions release Section persons. states: Propensities” Person Charge Having Dangerous whom of a he knows charge person “One who takes third to if con- to be to cause harm others likely bodily should know to reasonable care to control trolled is under a exercise duty harm.” him from prevent doing third such 319 involve the release negligent The illustrations Section with an infectious hospital from a private an patient infectious alia, Missouri, (based, K & T.R. v. on Co. Wood disease inter 223, 449) (1902), 66 a homicidal escape Tex. S.W. 95 of guards due to the negligence employed maniac patient (based, alia, v. State on Austin W. Co. inter sanitarium Jones 577). 214, (1923), 119 122 Me. A. because it used Wetzler’s 1970 The State asserts
339 state, Wetzler out of in the State of residing Washington, was and was therefore not practice, where has available fact, In Dr. has retired and his are not Wetzler records testify. at this available time.
I believe the transcribed under clearly admissible MCA, 95-1802(e),’R.C.M. section now section 46-14-204 witness, provides which that the sworn transcribed cross-examine, that the defendant has been able to is if admissible (1974), the witness is out of the state. State v. LaCario 163 Mont. 982; (1969), v. State Bouldin 153 Mont. P.2d 830; P.2d v. and State Zachmeier 153 Mont. 453 P.2d
As to the
presumption
continuing insanity, Montana
the common law
recognizes
presumption
once
insanity,
proved,
is
to exist.
presumed
assertion that
Appellants’
ends
presumption
after five
years
unfounded.
wholly
Presump
basis;
tion must
on
be
judged
case-by-case
steadily
inference
*14
diminished in force with the
of time at a
to
lapse
rate proportionate
of
quality
the permanence
to the
belonging
thing
question
in
(1936),
until
it ceases. Sommer v.
103 Mont.
62
Wigen
P.2d
333;
(1954),
705;
People v. Baker
42 Cal2d
268
v.
P.2d
State
Or.291,
Garver
190
The State was to that required prove was insanity perma- nent and Wetzler’s continuing. went to that clearly ques- tion. The State was to trying pass the off as evidence of Olson’s condition at the of time the hearing but as testimony Olson’s former concerning condition which was to serve as an explanation his current actions.
Olson was in diagnosed 1970 as a mental having problem long for which to standing he was ordered be confined and treated. commitment, Yet one year after his Olson from Warm escaped and for the five between 1972 1977 no years and received Thus, treatment. has apellant essentially been untreated for this illness; a grave that it is presumption continues appropriate. The does not believe that the original on insanity to confined. was the com- sufficient It always keep White, and the fact
bination of the attack on Wetzler’s testimony, that no treatment which made the State’s case. had received there was substantial
As to the use of Karla White’s testimony, Olson, committed the 1977 between similarity rapes White, on Olson in White’s appearance by attack and the 1976 may bedroom. While no sexual assault took there have been place, not had one had not the intervened in one incident or White police a in other. male companion when took the victims’ husbands rapes night
The 1969 place to their had threatened harm children. away were and after had night, on White occurred at and appellant The also attack to the of her child and husband. inquired as whereabouts to he was entitled to release required Olson was that prove evidence that produced the evidence. Appellant preponderance to community he is not ill and that he has mentally adjusted State, hand, life. on the other evidence that produced The family as and serious grave was in 1970 appellant diagnosed having illness, that two in that he had raped women similar, in 1977 that was had an attack woman upon perpetrated went, that it the earlier The evidence also showed as far as rapes. treatment for his mental had received no appellant essentially record, in entirely justified the District Court illness. Upon did, an it had not shown entitlement appellant that determining, evidence. by preponderance release Even Wetzler’s the evidence ignoring transcript testimony, was a others 1970 and physical danger shows stated in the Revised remained so 1977. As Commission 95-508, R.C.M.1947, now sections 46-14-301 Comment to section 46-14-304 MCA: through
“. . . It seems make the criterion for preferable dangerousness continued rather than to that the committed custody provide be or released when restored sanity may discharged laws. mental disease Although defined hygiene still be may person may dangerous such greatly improved, because factors in his personality background other than Also, mental disease. such a standard provides possible means for the control of the occasional defendant who quite be may but dangerous who successfully feigned mental disease to an gain ...” acquittal
This comment is particularly appropriate in case present based on White’s uncontroverted testimony.
I would affirm the District Court.