
    Sam MILLER, Appellant, v. J. R. BLALOCK, M. D., Superintendent, Southwestern State Hospital, Marion, Virginia, Appellee.
    No. 10079.
    United States Court of Appeals Fourth Circuit.
    Argued Jan. 7, 1966.
    Decided Feb. 9, 1966.
    Ronald P. Sokol, Charlottesville, Va. (Court-assigned counsel), for appellant.
    Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.
    Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and BUTLER, District Judge.
   J. SPENCER BELL, Circuit Judge:

This is an appeal from an order of the District Court for the Western District of Virginia denying without a plenary hearing the petitioner’s application for a writ of habeas corpus.

The petition raises several issues, only one of which is pressed here: Is the petitioner, who has been confined in an institution for the criminally insane for more than seven years without an inquisition of lunacy or an adjudication of insanity, held in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States? The state concedes that he has been confined since 1958 under the provisions of section 19.1-228, Code of Virginia (1950) as amended, and that he has had neither an inquisition of lunacy nor an adjudication of insanity, but the state contends that he has a remedy under the state law by which he may ascertain his present mental condition and by which he may secure release if he is not now insane. Section 37-122 et sequi.

The record shows that the petitioner was arrested in Norfolk, Virginia, on April 7, 1958, having been indicted for murder and felonious assault. On April 8th he was sent to the Southwestern State Hospital at Marion, Virginia, under the provisions of section 19.1-228 of the Virginia law, “ * * * in order for the court to determine whether such person is mentally competent to plead and stand trial * * On June 19, 1958, the superintendent of the hospital reported by letter to the judge of the Corporation Court of Norfolk that the petitioner was insane and, therefore, unable to stand trial. Two days after his confinement he filed a habeas petition which he was persuaded by the superintendent of the hospital to withdraw. Thereafter he filed a petition for habeas corpus in Smyth County, Virginia, the county in which the hospital is located. This petition raised several issues which are not relevant to this appeal. It also attacked the petitioner’s commitment, alleging that he had never had a lunacy hearing or an adjudication of insanity. On July 29, 1963, the petition was denied. On June 11, 1964, the Supreme Court of Appeals of Virginia denied his petition for a writ of error and affirmed the judgment of the Circuit Court of Smyth County. A petition for certiorari was denied by the Supreme Court of the United States, 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274, on April 26, 1965.

We hold that the petitioner has exhausted his state remedies. It is true, as the state contends, that under the Virginia law, section 37-122 et sequi, the petitioner may by a writ of habeas corpus test whether he is presently insane, but this is not the issue which he has sought so diligently to present to the state court and to the court below. That issue is whether or not he was originally constitutionally confined. In Robinson v. Winstead, 189 Va. 100, 52 S.E.2d 118, Justice Eggleston, now Chief Justice, clearly pointed out the distinction and held that if one is committed under a void commitment he is entitled by writ of habeas corpus to test the validity of that commitment, and in such a proceeding it is not necessary to prove that he is now sane:

“The Attorney General argues that despite the invalidity of the commitment the petitioner is not entitled to his discharge, because, it is said, he has failed to allege and prove in the present habeas corpus proceeding that he is not in fact feeble-minded. In support of this argument he cites Code, § 1029, as amended by Acts 1920, ch. 164, p. 240.
“Under this statute [now section 37-122 et sequi] a person ‘held in custody as insane, epileptic, feeble-minded or inebriate’ may file a petition for a writ of habeas corpus with the proper court to determine his mental condition. Thus one previously adjudicated to be insane or feeble-minded is given the opportunity of showing that he is no longer mentally defective, and if he does so his detention becomes illegal and he is entitled to his discharge.
“But it is not the purpose of the statute to require such a showing in order that one who is illegally restrained under a void commitment may be entitled to his discharge. In the present proceeding the mental condition of the petitioner is not in issue. We are concerned merely with the validity of the commitment under which he is held, that is, whether he has been deprived of his liberty in the manner prescribed by the statute.” 52 S.E.2d at 122.

Thus the state’s contention before us that the petitioner has not suggested that he is now sane is irrelevant to this inquiry.

It is clear from the record that the petitioner has been confined for an indefinite period of time without the essential rights of notice and hearing, or opportunity to be heard before a competent tribunal. Simon v. Craft, 182 U.S. 427, 436, 21 S.Ct. 836, 45 L.Ed. 1165 (1901); State of Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). He has been confined without benefit of counsel or the use of expert testimony to test the validity of the report upon which his confinement was based. Cf. Gideon v. Wainwright, 372 U.S. 335, 342, and at pages 345-347, 83 S.Ct. 792, 9 L.Ed.2d 799, where Mr. Justice Douglas in a concurring opinion reviews the history of the broadening concept of fundamental fairness as applied to state procedures under the due process clause of the Fourteenth Amendment.

If we read section 19.1-228 of the Code of Virginia to provide that a person may be confined in an institution for the criminally insane for an indefinite period of time without notice and without a hearing, as the state contends that we should read it, then we must hold that the statute is facially unconstitutional. If we read the section in connection with section 19.1-230.1 to hold that upon receiving a report from the superintendent of the institution that the petitioner is insane then it is incumbent upon the court to appoint a commission “who shall inquire into the facts as to the sanity or mentality of such person and report their findings to the court” as providing for notice and hearing before the person is committed for an indefinite period as distinguished from a temporary commitment for observation then we think that the petitioner is held in violation of his constitutional rights to proper notice and hearing.

Even though the confinement of an insane person under a void commitment is illegal, he will not be set at liberty under a writ of habeas corpus if his enlargement will be dangerous to himself or to other people, but he will be detained to permit a legal commitment to be secured under proper proceedings. Robinson v. Winstead, supra. We, therefore, remand the case to the district court with instructions to release the prisoner unless the state affords petitioner the hearing to which he is entitled within a reasonable time.

Reversed and remanded. 
      
      . “§ 19.1-228. When question of sanity raised, commitment before trial. — If, prior to the time for trial of any person charged with crime, either the court or attorney for the Commonwealth has reason to believe that such person is in such mental condition that his confinement in a hospital for the insane or a colony for the feeble-minded is necessary for proper care and observation, the court or the judge thereof may, after hearing evidence on the subject, commit such person, if a white person, to any State hospital for the insane best adapted to meet the needs of the case and, if a colored person, to the Central State Hospital, under such limitations as it may order, pending the determination of his mental condition. In any such case the court, in its discretion, may appoint one or more physicians skilled in the diagnosis of insanity, or other qualified physicians, and when any person is alleged to be feeble-minded may likewise appoint persons skilled in the diagnosis of feeble-mindedness, not to exceed three, to examine the defendant before such commitment is ordered, make such investigation of the case as they may deem necessary and report to the court the condition of the defendant at the time of their examination. A copy of the complaint or indictment, attested by the clerk, together with the report of the examining commission, including, as far as possible, a personal history, according to the form prescribed by the general board of directors of the State hospitals, shall be delivered with such person to the superintendent of the hospital to which he shall have been committed under the provisions of this section. As used in this section the term ‘court’ shall be construed to include courts not of record and courts of record.”
     
      
      . “§ 19.1-230.1. Superintendent of institution to report finding that accused is insane or feeble-minded; commission to inquire into sanity or mentality. — If any such person so committed for observation prusuant to § 19.1-228 or 19.1-229 to the department for the criminal insane at the proper hospital is, in the opinion of the superintendent, insane or feeble-minded, the superintendent shall report such finding to the court from which such person was committed but shall retain custody of such person subject to the further order of the court. And upon receiving such report the court may appoint a commission or not to exceed three physicians, any or all of whom may be from the staff of the hospital where the person is committed for observation, who shall inquire into the fact as to the sanity or mentality of such person and report their findings to the court.” Notices of Lien have been filed with the Register of Deeds, Kent County, Michigan.
     