
    Ted Weirich v. State of Indiana.
    [No. 1271S375.
    Filed October 12, 1973.]
    
      Don A. Tabbert, Robert B. Keene, Sparrenburger, Duvall, Tabbert & Lally, of Indianapolis, for appellant.
    
      Theodore L. Sendalc, Attorney General, A. Frank Gleaves, III, Deputy Attorney General, for appellee.
   Hunter, J.

On December 8, 1970, defendant-appellant was indicted for first degree murder in the stabbing death of his mother. He filed his defense of insanity on February 1, 1971, pleading that at the time of the offense, “his mind was so affected as a result of mental disease or defect that he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct” to law. The jury returned its verdict on April 14,1971, as follows:

“We, the Jury, find the defendant, Ted Weirich, committed the act as charged in the indictment, but the defendant was insane at the time of the commission of the act and that, therefore, the defendant is not guilty of said offense, because he was insane at the time of the commission of the act.”

Following the trial, on April 28, 1971, the trial court held a hearing on the question of whether defendant was sane at the time of trial pursuant to IC 1971, 35-5-3-1; Ind. Ann. Stat. § 9-1704a (1971 Supp.):

“ 9-170-t-a. Commitment to the department of mental health. —If, in any criminal action, the court or jury trying the cause finds the defendant not guilty on the ground of insanity, the court shall find as to the defendant’s sanity at the time of the trial, and if the court shall find that the defendant is insane at the time of the trial, he shall order the defendant committed to the department of mental health, to be confined by the department in an appropriate psychiatric institution; or if he shall find that the defendant is sane at the time of trial, but the recurrence of such an attack of insanity highly probable, he shall order the defendant committed as above provided. Such person shall be committed to the department of mental health until released as hereinafter provided. [Acts 1951, ch. 238, § 1, p. 682; 1961, ch. 151, § 1, p. 329; 1967, ch. 291, § 1, p. 946.]

The evidence offered at the hearing consisted of testimony from three psychiatrists. Two of the doctors testified that in their opinion the appellant was sane at the time of the trial; the third expert, Dr. Smith, gave his opinion to the contrary. The trial court found that the appellant was insane at the time of the trial and ordered him committed for confinement at a psychiatric institution until released as provided by law.

This Court has held that the statute under which defendant-appellant has been committed [IC 1971, 35-5-3-1; Ind. Ann. Stat. §9-1704 (a) (1971 Supp.)] is unconstitutional. Wilson v. State (1972), 259 Ind. 375, 287 N. E. 2d 875. Therefore, we must reverse the judgment of the trial court by reason of the unconstitutionality of the statute and order the appellant’s discharge subject to proceedings, if any, that may be then pending under the civil commitment statutes.

Arterburn, C.J., DeBruler, Givan and Prentice, JJ., concur.

Note. — Reported in 301 N E. 2d 755. 
      
       This case was transferred and re-assigned to this office on June 27, 1973.
     