
    In the Matter of the Application of MACK KITCHENS, also known as HERBERT ABBOTT, for a Writ of Habeas Corpus.
    No. 9596.
    Submitted September 28, 1955.
    Decided September 28, 1955.
    288 Pac. (2d) 1094.
    Michael J. Whalen, Billings, for Petitioner.
    
      Emmet T. Walsh, Asst. Atty. Gen., for Warden of the State Penitentiary.
    Mr. Whalen and Mr. Walsh argued orally.
   PER CURIAM.

This is a Habeas Corpus proceeding in which Mack Kitchens, also known as Herbert Abbott seeks release from the State Prison.

At a hearing this day held where the petitioner was present in person and represented by his counsel, Michael J. Whalen, and. the Warden" of the State Prison was represented by the Attorney General and Emmet T. Walsh, Assistant Attorney General.

And it appearing that in Appeal No. 9539; entitled the State of Montana, respondent, v. Mack Kitchens, alias Herbert Abbott, alias Frank Peterson, alias Harry Harrington, appellant, the majority opinion of this court, pronounced August 5, 1955, 286 Pac. (2d) 1079, 1085, determined that the Judgment of conviction theretofore entered against the appellant in the District Court of Yellowstone County, the Honorable Guy C. Derry, District Judge, presiding, was reversed and the cause remanded with the specific direction that:

“If a new trial is to be had under this information, the district court will first make prompt inquiry into Kitchens’ sanity consistent with this opinion and as R.C.M. 1947, sections 94-9302 to 94-9307, require. If this prosecution is dismissed, the defendant will be delivered to the custody of the district court for Cascade County, which under its commitment of April 21, 1954, and R.C.M. 1947, section 91-4818, has continuing jurisdiction to inquire into his mental condition and to make such disposition of him as may be required by law. ’ ’

And it further appearing that so far as the petitioner, his counsel, the Attorney General or this court are concerned, that nothing has been done by the Honorable Guy C. Derry, District Judge, presiding, or the County Attorney of Yellowstone County, toward granting a new trial or setting the cause on the trial calendar, or dismissing the prosecution, or inquiring into Kitchens’ sanity and mental condition.

And that at all times since the pronouncement of said opinion by this court the petitioner has been and still is in the custody of the Warden of the Montana State Prison.

Now Therefore It Is Ordered that F. O. Burrell, Warden of the State Prison, promptly deliver the petitioner Mack Kitchens, alias Herbett Abbott, into the custody of the Sheriff of Yellowstone County, there to be promptly dealt with as directed in said majority opinion of this court so pronounced on August 5, 1955.  