
    In re Remus.
    (No. 21064
    Decided June 20, 1928.)
    
      
      Mr. Charles H. Elston and Messrs. Henderson & Durbin, for petitioner.
    
      Mr. Edivard C. Turner, attorney general, Mr. L. Crary Davis, Mr. Charles P. Taft, 2d., prosecuting attorney, Mr. Walter K. Sibbald, Mr. Ernest M. Bot-kins, prosecuting attorney, and Mr. Joseph H. Flick, for the State.
   Jones, J.

Counsel for the respondent assign various reasons for reversal of the judgment of the Court of Appeals. It is claimed that the Court of Appeals erroneously assumed jurisdiction in habeas corpus, for the purpose of determining the sanity of the inmate; that by assuming jurisdiction and awarding the writ of discharge, it thereby substituted its judgment of the patient’s mental condition for that of the superintendent of the Lima State Hospital; that the Court of Appeals erroneously disregarded the rule requiring the petitioner to prove his sanity by clear and convincing evidence; and that it did not apply the proper test of insanity in cases of this character. It is also claimed that the Court of Appeals erred in discharging the petitioner because there was another action then pending in the court of common pleas of Hamilton county involving the same question and the same parties.

'' Counsel for the respondent contend that, because of the peculiar legislation in this state applying to the Lima State Hospital, that hospital occupies a class distinguished from other state hospitals, since the former has been especially designated by law as a hospital for treatment of.the criminal insane; and that, for such an institution, legislation peculiar to that class of inmates has been adopted which controls the methods by which one who is acquitted of murder on the ground of insanity must be released. Various cognate statutes in support of this argument are cited. It is particularly argued that the only law governing the custody and method of release of patients from the Lima State Hospital is found in Section 1998, General Code (98 O. L. 236, 240). That section authorizes the superintendent of the Lima State Hospital to discharge an inmate “not under sentence for crime, who, in his judgment, is recovered, or who has not recovered, but whose condition has improved to such extent that his discharge will not be detrimental to the public welfare or injurious to him. ’ ’

In their brief counsel for the respondent maintain that the determination of the superintendent of the inmate’s mental condition and of his restoration to sanity is final. They argue- that the language of the statute plainly indicates this. We quote from their brief:

“That it is the judgment of the superintendent Which is to be followed in determining whether or not an inmate is recovered and not the judgment of the Court of Appeals for the county in which the hospital is located,” and that this statute “exclusively vests in the superintendent of such hospital * * * the power to discharge such an inmate when, and only when, in the judgment of such superintendent, the inmate is recovered.” The claim is broadly made that the power of release under this section of the statute is confined solely to the judgment of the superintendent.

While it may be readily conceded that the superintendent has a discretion in the exercise of his judgment in the release of an inmate, we do not agree that his judgment in that respect is either exclusive or final; nor do we concur in the view that an inmate of such hospital may not apply to a court that has original jurisdiction in habeas corpus for his release therefrom. Under the Constitution of this state, the Court of Appeals is given original jurisdiction in habeas corpus to determine whether one of its citizens is unlawfully restrained or deprived of his liberty. Surely this power has equal or larger scope than any that may be conferred upon the superintendent by legislative act. Habeas corpus supplies a method by which an inmate may have a judicial determination of his sanity or of his unlawful restraint. If unlawfully restrained, he may invoke the authority of a court of competent jurisdiction, by means of that writ, in order to secure his release. No legislation can circumvent or deny this jurisdiction of the court in habeas corpus, although -legislation may provide for reasonable facilities for its judicial exercise. Addis v. Applegate, 171 Iowa, 150, 154 N. W., 168, Ann. Cas., 1917E, 332; In re Webers, 275 Mo., 677, 205 S. W., 620.

That the liberties of its citizens might be safeguarded, this state, like many others, has adopted this constitutional provision:

“The privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety require it. ’ ’ Article I, Section 8.

The petitioner had not only the constitutional right of appeal to the court, in case of his unlawful restraint, but he has also been given that right by virtue of Section 12161, General Code. This section provides: ■

“A person unlawfully restrained of his liberty * * * may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation.” ¡

Were we to hold that the judgment of the superintendent of the Lima State Hospital upon the question of the inmate’s sanity, or upon the lawfulness of his restraint, Was final and exclusive, we would thereby deprive him of the right to appeal to a judicial tribunal for the determination of such question — a right guaranteed him by our Constitution and law. It would be an anomaly in our jurisprudence were we to hold that a judicial tribunal, upon which original jurisdiction in habeas corpus has been conferred by our Constitution and laws, was powerless to determine the sanity' or insanity of an inmate of an institution for the insane, and to release him if he was in fact sane or had been restored to reason since his legal confinement, or to hold that such courts were prevented from deeréeing his liberation because the judgment of the superintendent conflicted with the judgment of a court empowered to use its processes and to hear sworn testimony upon that vital issue.

In ease qn inmate has been acquitted- by the verdiet of a jury of murder on the ground of insanity,the verdict is prima facie evidence of his insanity, and is so made by statute. Section 13612, General Code. In such case the presumption of his insanity continues; and to obtain his release the burden of proving his sanity thereafter is upon the prisoner or inmate of the institution; but, in the last analysis, it is the court, upon application to it, and not the superintendent, who must apply the rule and quantum of evidence in order to establish the sanity of the inmate. Conceding this to be true, counsel for respondent contend that the petitioner was required to prove his sanity, by clear and convincing evidence, at the time of hearing his application in the Court of Appeals; and in that connection it is urged that that court disregarded this rule of evidence when it discharged the petitioner. There has been no case cited to this court which holds that that quantum of proof is required. In the case of Harry K. Thaw, who was acquitted on the ground of insanity, and who later applied for successive writs of habeas corpus, the judges.of the nisi prius courts of New York held that an inmate under such circumstances should remain in the institution until such time as it should be reasonably certain that the public peace would not be menaced. People, ex rel. Peabody, v. Baker, 59 Misc. Rep., 359, 110 N. Y. S., 848, 852, People, ex rel. Thaw, v. Lamb (Sup. Ct.), 118 N. Y. S., 339.

The majority of the court are of opinion that the Court of Appeals had ample jurisdiction to hear and determine the sanity of the petitioner and the unlawfulness of his detention, and that the judgment of the superintendent as to petitioner’s sanity did not foreclose him from appealing to the courts for this writ.

Counsel for respondent also contend that the question of the petitioner’s sanity or insanity is now pending between the same parties on a proceeding in error to the court of common pleas of Hamilton county, from a judgment of the probate court of that county committing the petitioner to the Lima State Hospital pursuant to the verdict under Section 13612, General Code. If the case in the common pleas court can be considered as pending, it was not one instituted by the petitioner, but was lodged in the probate court by virtue of the statute requiring the clerk of the criminal court to certify the verdict to the probate court. However, the case in the Court of Appeals was not necessarily the same as that before the probate court. The question in the probate court (although counsel for petitioner claim there was none such) is, and must have been, whether the prisoner in December, 1927, was then sane; the issue before the Court of Appeals when it heard and entered its decree in March, 1928, was whether at that time the prisoner was sane or had been restored to sanity. While the presumption of his insanity in December may have continued, it did not necessarily follow except by way of presumption, that the inmate was also insane three months later when the Court of Appeals entered its decree; at least this-was a question of fact to be determined by the Court of Appeals under the proper rules of evidence. A pending case could have no more vitality than an adjudicated case as a bar against future applications for the writ of habeas corpus; and an adjudication of an inmate’s previous mental condition is no adjudication of his condition at a later period. It is established by overwhelming authority in this country, and elsewhere, that a previous adjudication of an inmate’s mental condition constitutes no bar to another and later application for release from custody by way of habeas corpus upon claim and proof of sanity at the time of his later application. People v. Brady, 56 N. Y., 182; People, ex rel. Maglori, v. Siman, 284 Ill., 28, 30, 119 N. E., 940; Coston v. Coston, 25 Md., 500, 506; In re Snell, 31 Minn., 110, 16 N. W., 692; People v. Lamb, supra. The principle enunciated in those cases has been carried into our statute. Section 1976, General Code, which seems general in its application, provides that all persons confined as insane shall be entitled to the benefit of the writ of habeas corpus, that the question of insanity must be decided at the hearing, and that a judge’s previous decision of insanity “shall be no bar to the issuing of the writ a second time, if it is alleged that such person has been restored to reason. ’ ’

The decisive question in this case was one of fact rather than of law. The real issue was whether under the evidence Remus was sane or insane. Without deciding what quantum of proof was necessary to prove his sanity, the majority of the Court of Appeals found “that the evidence establishes his sanity now, beyond all reasonable doubt,” and that “the proof is clear and convincing.” The evidence adduced at the trial consisted of a large mass of exhibits and several thousand pages of typewritten testimony. The judges of the Court of Appeals had the advantage, which we do not have, of seeing and hearing the witnesses. They say in their opinion that “it is especially noteworthy that 22 of the 25 experienced persons who there testified or certified concerning the mentality of Remus stated positively that in their opinion he is sane.” After reciting the fact that the members of the court gave to the conduct of the petitioner, both while he was testifying and while he was not testifying, the most careful observation and scrutiny, the majority of the court then state in their opinion:

‘1 The fullest consideration has been, given to all the evidence and to the conduct of the petitioner throughout the trial; all the circumstances, conflicts and harmonies have been regarded to the uttermost limits; and upon the only question now before the court, namely, the sanity of the petitioner at the time of the trial in this court, a majority of the court are clearly convinced, and therefore find, that petitioner, Remus, is sane, which finding entitles him to be released from Lima State Hospital, which, as we have pointed out, and now again emphasize, is solely for the insane. We do not decide what quantum of proof the petitioner was required to furnish, of his present .sanity, whether a preponderance, or whether it must have been clear and convincing, because, as we have said, the proof is clear and convincing. Indeed, the evidence establishes his sanity now, beyond all reasonable doubt. ’ ’

For this court t.o say now, especially in view of the fact that the trial court had not only Remus but many of the expert witnesses before it, that the judgment of the majority of the Court of Appeals, on a question of fact, purely, was wrong, would be to substitute the judgment of this court for that of the trial court. The judgment of the Court of Appeals of Allen county is affirmed.

Judgment affirmed.

Kinkade, Robinson and Matthias, JJ., concur.

Marshall, C. J., Day and Allen, JJ., dissent.

Kinkade, J.,

concurring. I heartily concur in the opinion written by Judge Jones. This court is not passing in review on the Remus murder trial. No court ever had any authority to disturb the verdict returned by the jury in that case.

During that very long trial, the state at no time believed that Remus was insane. The state was then contending that he was sane when he killed his wife, and so, of course, was insisting that he was sane as he was being tried for that crime. Had counsel for the state or the trial judge believed that Remus was insane, it would have been their duty to postpone-the trial until his sanity was restored. An insane man cannot be called to plead to an indictment which charges him with murder, or to stand trial for murder, or for any other crime while his insanity continues. There is nothing new about this proposition. It is well known to all lawyers and all judges of all courts. It would not be even respectful nonsense to say that the prosecuting attorney of Hamilton county and the trial court, with a jury, spent several weeks trying to convict a man of murder who was known or believed to be insane throughout the trial. So we have the self-evident fact that the trial court and able counsel for the state were fully convinced that during all that time they were trying a sane man, and not an insane man. Remus was under their immediate continuous observation every day in open court, and he was very active there in aiding his own attorneys in the preparation and presentation of his defense. How would it have been possible for any one to have had a better opportunity to judge of the mental condition of Remus — as to whether he was sane or insane — than was there afforded to the trial judge, the jurors, and the counsel for the state? Evidently it never occurred to any of them that Remus was then insane.

The verdict of the jury in that case was, not that Remus was then insane, but was that he was insane at the time he shot his wife, some months before. The verdict spoke with reference to that date, and no other date; and, but for the statute which required that he should be taken before the probate court, so the judge of that court might determine upon evidence what his mental status with respect to sanity was on the date of the hearing in the probate court — which was done — the verdict of the jury would have set Remus free forthwith.

The probate judge decided that Remus was insane on the date of the decision rendered by that judge, which was December 23, 1927, and pursuant to that decision Remus was transferred to, and confined in, the state hospital for criminal insane at Lima, until he should legally be discharged therefrom.

.Before being taken from Cincinnati to the Lima hospital, counsel for Remus, on January 6,1928, instituted a proceeding.in error in the court of common pleas, challenging the correctness of the decision rendered by the probate judge.' That case, in the court of common pleas was never pressed for trial by either counsel for the state or counsel for Remus, and it stands on the. docket of the court of common pleas undisposed of. That case constituted no bar to the jurisdiction of the Court of Appeals in hearing the habeas corpus case some three months later.

Insane asylums are built and maintained by the state for the care and treatment of the insane. They are not prisons in which punishment is inflicted on sane people by reason of crimes that they have com- ■ mitted. An asylum for the criminal insane is simply a method of separating the criminal insane class from the insane class who have no criminal propensities. It is still an asylum for the treatment and restraint of the insane, and is not a prison for the punishment of criminals who are not insane.

To say there was no evidence produced in the Court of Appeals showing any change in the mental condition of Remus between the date on which the probate judge in Cincinnati found him to be insane, December 23; 1927, and the date, three months later, when the Court of Appeals found him sane beyond a reasonable doubt, impresses me as a statement of the question not entirely fair to the party involved. If we assume that the probate judge was correct, on the evidence submitted to him, in his finding that Remus was insane on that date, December 23, 1927, we must also assume that the judges of the Court of Appeals were correct in their finding, on the same question, on the evidence submitted to them, on the date of their decision three months later.' And, even though no witness came forward and said in so many words, if that be the fact, that the mental condition of Remus had improved in the three-months period between the two hearings, the conclusion would, of course, be inevitable that he must have improved in that period, .otherwise the Court of Appeals could not have found, as they did, that' the evidence produced before them established the sanity of Remus beyond a reasonable doubt.

The proposition that the Legislature has clothed the superintendent of the asylum at Lima with the sole and exclusive right to determine when an insane patient under his care rshall have 'been restored to reason, and that, no matter how arbitrary or wrong his decision may be, it cannot be reviewed by a court, impresses me as wholly untenable. Counsel for the state, in argument in this court, said they were not contending that a gross abuse of discretion in this behalf on the part of the superintendent could not be reviewed and corrected by the courts. A majority of this court is quite unable to appreciate any sound reason why the Legislature would desire to clothe any individual with any such arbitrary power. It requires a decree of some court to establish the fact of insanity and to place any individual in an insane asylum. We are not aware of any tendency on the part of the Legislature to weaken or change this safeguard thus thrown around the individual citizen who becomes incapable of taking care of himself. When the light of reason 'comes again, who shall say that he may not appeal to the courts if and when it becomes necessary to secure his liberty. Is there any better use that can be made of the time-honored and sacred writ of habeas corpus than to then employ it in liberating a sane person from an insane asylum? If the person liberated belongs in prison, then he should be put in prison. He cannot be legally kept in an insane asylum merely because he cannot then be legally sent to some real prison, maintained for the punishment of criminals who are sane. To state that he can be is to state an absurdity that has no place in the law.

It may be a very popular proceeding to keep Remus in the insane asylum, regardless of whether he is sane or insane; and it may be a very unpopular proceeding to turn him out, regardless of whether he is sane or insane; but surely no member of the Court of Appeals or of this court would consider any such feature of the case for a moment.

•This court does not pass on the weight of the evidence in cases coming here for review from the Court of Appeals or the court of common pleas, no matter whether the case be criminal in character, or a civil action. This court does determine whether there is any evidence to sustain an issue in dispute, or whether the evidence produced to sustain a given issue is of that character and quality that justifies the trial court in reaching the conclusion it has reached. This principle has been many times announced here, and in no case is it better stated than in the criminal case of Breese v. State, 12 Ohio St., 146, 80 Am. Dec., 340, the fourth clause of the syllabus of which is as follows:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

In the opinion of this court in the cited case, we find this statement, at page 156:

“Lastly, it is said, that the verdict is contrary to the evidence, bnt before we can reverse a judgment for this reason, it must be clearly so.
“The jury who try a cause and the court before which it is tried, have much better opportunities to determine the credibility and effect of the testimony, and we ought, therefore, to hesitate before disturbing a verdict, rendered by a jury and confirmed by a court, possessing such advantages, merely because there is an apparent conflict in the testimony. The conflict or its effect, might all disappear, if the witnesses were examined before us and we could see and hear them face to face, as they were seen and heard by the court and jury whose verdict and judgment are passing in review before us.”

The sound and fundamental principles in this case have been approved and followed many times by this court. The rule is the same whether the questions of fact are submitted to a jury in the trial court or are submitted to the court itself where no jury is employed. It cannot be said by this court that the decision of the Court of Appeals is so manifestly against the evidence produced there as to justify this court in reversing the decision and judgment of the Court of Appeals. There are no complicated legal questions in this matter. The case is simple in the extreme, and calls only for the application of fundamentals, long established in the law, in order to rénder a correct decision of this case.

AlléN, J.,

dissenting. I dissent from the judgment, upon the ground that there is not a syllable of proof in-this record that Remus has been restored to reason since the adjudication of his insanity. Section 1976, General Code, provides that a decision that an applicant for the writ of habeas corpus is insane “shall be no bar to the issuing of the writ a second time, if it is alleged that such person has been restored to reason.” This provision necessarily requires that at the trial in the second habeas corpus action, upon the question of insanity, it must be proved that the applicant has been restored to reason, for, when an allegation of fact is made material by statute in a pleading, surely the pleader must prove that fact. This provision constitutes a legislative recognition by this state of the well-established rule that insanity, once shown to exist, is presumed to continue. As stated in 29 Corpus Juris, 106:

“But the presumption of a continuance of a state of facts once found to exist, establishes, prima facie, the present insanity of one formerly found to be insane, and casts the burden of proof upon the petitioner to show a recovery of sanity by competent and sufficient evidence, in default of which the writ will be dismissed and the petitioner remanded.” In re Brown, 39 Wash., 160, 81 P., 552, 1 L. R. A. (N. S.), 540, 109 Am. St. Rep., 868, 4 Ann. Cas., 488.

And, indeed, it is laid down in eminently respectable case authority that this element, namely, proof of change of mental condition, must affirmatively appear in order to justify the release of one formally adjudicated to be insane. Commonwealth v. Baginski, 85 Pa. Super. Ct., 47; Commonwealth, ex rel. Bickel, v. Bennett, 18 Phila. Rep., 432; People, ex rel. Thaw, v. Lamb, Supt., (Sup. Ct.) 118 N. Y. S., 389; People, ex rel. Peabody, v. Baker, 59 Misc. Rep., 359, 110 N. Y. S., 848: In re Ostatter, 103 Kan., 487, 175 P., 377; In re Palmer, 26 R. I., 486, 59 A., 746.

Counsel for Remus try to avoid the effect of this proposition by stating that their experts “never saw Remus, prior to the time of their examinations of him at the Lima State Hospital.” The pertinent inquiry arises as to why the witnesses who testified on behalf of Remus at this trial for murder, that he was insane at that time, witnesses who necessarily could have made the comparison of his condition in 1927 and at the time of the hearing in the Court of Appeals, were not subpoenaed to prove a change of mental condition, if such existed. It is significant of the present distortion of the defense of insanity in murder cases that not one of these witnesses who testified at the original trial, upon whom Remus relied to exonerate himself of the charge of murder, was called in the instant proceeding.

This record shows no change in the mental condition of Remus since December 23, 1927. Hence proof of a material and essential allegation necessary to the judgment is completely lacking.  