People ex rel. Duryea v. Kieb

Full title: THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHESTER B. DURYEA, Respondent…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 30, 1941

262 App. Div. 912 (N.Y. App. Div. 1941)

Opinion

June 30, 1941.

Order sustaining writ of habeas corpus and directing appellant to deliver the body of respondent to the sheriff of the county of Kings affirmed, without costs. No opinion.

Lazansky, P.J., Hagarty, Carswell and Close, JJ., concur; Taylor, J., dissents and votes to reverse on the facts the order appealed from, to dismiss the writ of habeas corpus, and to remand the respondent to the custody of the appellant-superintendent, with the following memorandum:

In my opinion (1) the order appealed from is a final order to discharge a prisoner within the purview of Civil Practice Act, section 1274, and is, therefore, appealable; (2) the test of whether relator is entitled to be tried upon the indictment for murder in the first degree found by the grand jury of Kings county in 1914 is whether he is of sufficient ability mentally to understand the charge against him and to make his defense thereto; and (3) the finding recited in the order appealed from to the effect that the relator has such ability is against the weight of evidence which, when the record is considered as a whole, including the testimony of expert witnesses and of the relator, not only warrants but requires a finding that the relator, a sufferer from dementia praecox, paranoic type, has not such ability.