Opinion
No. 33197
Decided April 22, 1953.
Criminal law — Sanity of accused questioned — Commitment to Lima State Hospital for observation — Formal examination by court a condition precedent — Sections 13441-1 and 13441-4, General Code — Statutes violated, when — Commitment on unsworn statement of prosecutor — Constitutional law — Habeas corpus.
1. Sections 13441-1 and 13441-4, General Code, pertaining to the power of a Court of Common Pleas to commit one accused of crime to a hospital for the insane or to the Lima State Hospital for observation, in the event his sanity is put in question, contemplate as a condition precedent to such action a formal examination and investigation by the court into the question of the sanity or insanity of the accused, especially where the accused objects to the procedure.
2. A violation of such sections occurs and an accused is deprived of the due process of law guaranteed him by Section 16, Article I of the Constitution of Ohio, and the Fourteenth Amendment to the federal Constitution, where, against his protests, he is committed to the Lima State Hospital for observation for a period not exceeding one month, solely upon the unsworn statement of the prosecuting attorney as to his belief, based on hearsay, that the accused is not sane and without any semblance of a formal hearing as to the accused's mental condition and without the presentation of any evidence tending to prove insanity.
APPEAL from the Court of Appeals for Allen county.
This is a proceeding in habeas corpus originally instituted in the Court of Appeals for Allen county by Oscar Smilack, appellee, herein referred to as the accused, who in his petition claims that he is being unlawfully restrained in the Lima State Hospital by Roy E. Bushong, superintendent of the hospital, appellant herein. On hearing the Court of Appeals ordered the release of the accused.
The cause is now in this court on appeal as of right by the respondent.
On or about April 1, 1952, the accused was subpoenaed and ordered to appear before the Un-American Activities Commission of the General Assembly. Appearing before such commission, the accused refused to answer all questions put to him concerning his alleged membership in, activities in connection with, and contributions to the Communist Party. Thereafter, he was indicted by the grand jury of Franklin county for the violation of Section 12845, General Code, which makes it an offense punishable by a fine of not less than $100 or more than $5,000 to refuse to testify upon subpoena before either branch of the General Assembly or before a standing or select committee thereof.
On May 29, 1952, the day set for his arraignment on the indictment, the accused appeared in the Common Pleas Court of Franklin County with counsel who entered for the accused a plea of not guilty. Thereupon the prosecuting attorney and counsel for the accused made statements in open court in the presence of the accused, and a colloquy between the court and the counsel for the parties took place as follows:
"Mr. Bartlett: Now, your Honor please, before passing over this case, I desire to make a statement to the court.
"The Court: You may proceed.
"Mr. Bartlett: This defendant, Smilack, while charged with the same crime or misdemeanor that the others are, is in somewhat of a different situation. He seems to be the financial agent for the Communists here in this county, and he has given large sums of money from time to time. He has been milked, in other words, by some of these fronters for the outfit, to the extent that his own friends and family think that he has been made a sucker of.
"Several years ago his mother met a very violent death here in this county; an intruder going in the back door of the home, and the lady being later discovered in a brutally murdered condition, and, of course, there was a great amount of questioning of this defendant and other members of the family, as well as neighbors, etc. And it is the feeling of people that know the man well that he cracked up under those circumstances, and that he has never been the same since then. He has had psychiatric treatment from time to time since that tragedy, and yesterday his father called me and asked to come to my office to talk to me, and I told my secretary to return the call and tell the father he could come to see me any time he saw fit. Shortly afterwards he appeared in my office, and he and I visited quite a while, because he came from Dunkirk, Indiana, within eight miles of where I was born, and we knew many people in common, people that he had worked with and he dealt with in the past. And while we were in the course of that visit, one of the secretaries in the office came and said the son of Mr. Smilack, who was in my office, was there and wanted to see his father, and it was very important. His father asked me if I would let him in, and I said, `I would rather finish my conversation with you, since you asked to come to see me, but you go on out and see what your son wants, and then come back.' So, after a while he came back and said the son was raising Cain, that he heard the father was there, and it was reported to me by someone in the prosecutor's office afterwards that he raised Cain that his father was there, and that he shouldn't tell me anything about the death of his mother or the fact that he was given care on certain visits from time to time, and that he said the father ought to be declared crazy. Now, this old man, the father, is a seventy-year-old man, and no more Communist than the court itself. A fine gentleman. He came back in and he said he would rather be called crazy than be called a Communist. And at this time I am asking that the defendant, Oscar Smilack, be committed to Lima hospital for thirty days for observation and report as to his mental condition, and that the report made by them be placed in our file here in this case.
"Mr. Dworken: Of course, I object to that, your Honor.
"The Court: The court, in passing upon the request made by the prosecuting attorney on the facts which he has brought to the attention of the court, it seems that this is clearly indicated, and the court will therefore —
"Mr. Dworken: Your Honor, may I say something?
"The Court: Why, yes.
"Mr. Dworken: I spent a day with this man recently. He was at that time with his wife and his two boys, and I discussed this entire controversy, and I must say, from the conversation that I had with him, that he is just as sane as I am, and probably as your Honor is. The man knows what he is talking about. He is standing on his rights. The question that was put to him, or the questions that were put to him, which he refused to answer, and, legally, he wasn't compelled to answer them, and in addition to that there was no order by anybody, the chairman included, whereby he was ordered to answer the questions, and, your Honor —
"The Court: Oh, no, let's don't go into that. That is beside this point on which you are before me.
"Mr. Dworken: Now, I don't think that your Honor should go ahead and cause this man any more difficulty by ordering him to be examined at the Lima State Hospital, or at any other hospital. If your Honor wants to have this man examined, we will have him examined by a competent physician right here, and either submit the report to you —
"The Court: No, it is the order of the court that he be committed for a thirty-day period to the Lima State Hospital for observation and report, and an entry may be drawn accordingly."
The order of the Common Pleas Court committing the accused to the care and custody of the respondent for observation is as follows:
"This day this cause came on to be heard and the defendant, Oscar Smilack, being in court and represented by counsel, it was suggested to the court that the defendant is not now sane, the court upon consideration thereof and being fully advised in the premises finds that the defendant should be committed to the Lima State Hospital, there to remain under observation.
"It is therefore ordered, adjudged and decreed that the sheriff of this county forthwith safely convey the defendant, Oscar Smilack, to the Lima State Hospital and there commit him to the care, custody and control of said hospital, he, the said Oscar Smilack, there to remain under observation for a period not exceeding one month, pursuant to the provisions of Section 13441-4 of the General Code of Ohio."
On June 2, 1952, the accused filed his petition in this case which recites the nature of the indictment found against him and the proceedings had upon his arraignment before the Common Pleas Court of Franklin County and avers that his commitment was without any legal authority. The case was heard before the Court of Appeals on a transcript of the record of the arraignment proceedings in the Common Pleas Court of Franklin County, hereinbefore set out, as the only evidence submitted.
On June 13, 1952, the Court of Appeals, on hearing, ordered "that the petitioner be discharged from the custody of said Bushong by said Bushong delivering his custody to the sheriff of Franklin county, Ohio, to be held by him pursuant to the orders of the Common Pleas Court of said county to answer to an indictment against him pending in said court, and for further proceedings according to law."
Mr. Jack B. Dworken and Mr. Morton R. Dworken, for appellee.
Mr. C. William O'Neill, attorney general, Mr. Robert E. Leach, Mr. Larry Snyder, Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Henry L. Holden, for appellant.
We are not now concerned with either the accused's political philosophy or whether he violated Section 12845, General Code. The sole question for our determination is whether in the circumstances disclosed by this case the Court of Appeals was correct in holding that the trial court violated the Fourteenth Amendment to the Constitution of the United States relating to due process when it ordered the accused committed to the Lima State Hospital for observation for a period not exceeding one month.
Such commitment was purportedly ordered under authority of the sections of the General Code quoted below.
Section 13441-1, General Code, recites:
"If the attorney for a person accused of crime pending in the Court of Common Pleas, whether before or after trial suggests to the court that such person is not then sane, and a certificate of a reputable physician to that effect is presented to the court, or if the grand jury represents to the court that any such person is not then sane or if it otherwise comes to the notice of the court that such person is not then sane, the court shall proceed to examine into the question of the sanity or insanity of said person, or in its discretion may impanel a jury for such purpose. * * *" (Italics supplied.)
Section 13441-4, General Code, provides in part as follows:
"In any case in which insanity is set up as a defense, or in which present insanity of the accused is under investigation by the court or jury, the court shall have power to commit the defendant to a local insane hospital, or the Lima State Hospital, where the defendant shall remain under observation for such time as the court may direct not exceeding one month * * *."
It is axiomatic that a legislative act passed by the General Assembly is presumed to be within the constitutional power of that body, and that if possible it will be so construed.
In our opinion the above-quoted sections of the General Code are valid and enforceable. However, Section 13441-1, General Code, enjoins the court "to examine into the question of the sanity or insanity" of the accused and Section 13441-4, General Code, contemplates a situation where the "present insanity of the accused is under investigation by the court or jury." In the instant case the court proceeded summarily and there were no examination and no investigation as required.
The sending of a person to an institution for the criminal insane, even for a short time, is a serious matter and his confinement there is as full and effective a deprivation of personal liberty as is his confinement in jail.
It appears from the record in the instant case that the accused was ordered taken to the Lima State Hospital for observation for a period not exceeding one month, against his vigorous protest and where he had pleaded not guilty to an indictment charging him with a misdemeanor punishable only by fine. Such confinement was made (1) on the unsworn statement of the prosecuting attorney of Franklin county as to his belief, based on hearsay, that the accused is not sane, (2) without any semblance of a formal hearing as to the accused's mental condition, and (3) without the presentation of any sworn evidence tending to prove insanity.
That procedure was not such as is contemplated and required by the statutes quoted and operated to deprive the accused of the due process of law guaranteed by Section 16, Article I of the Ohio Constitution, and the Fourteenth Amendment to the federal Constitution.
The judgment of the Court of Appeals should be and is hereby affirmed.
Judgment affirmed.
MIDDLETON, TAFT, MATTHIAS and STEWART, JJ., concur.