
    SUPREME COURT—APP. DIVISION-FOURTH DEP.,
    July 24, 1906.
    THE PEOPLE EX REL. JOSEPHINE FORESTER v. SHERIFF, ETC.
    (114 App. Div. 861.)
    Incompetent Person—Transfer to Lunatic Asylum—Code Grim. Pro. § 658.
    Section 658 of the Code of Criminal Procedure authorizes a defendant under indictment to be committed to a lunatic asylum only when the commission appointed to examine him reports him as insane. A finding by the commission that he is not insane, but only mentally impaired, does not warrant his transfer to an asylum, and on habeas corpus he should be remanded to the custody whence he came.
    Appeal by the relator, Josephine Forrester, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of May, 1906, dismissing writs of habeas corpus and certiorari theretofore issued upon the application of the relator, and remanding Peter Forrester, an alleged incompetent, to the custody of the respondent.
    The relator’s husband being held in confinement under an indictment in the county of New York for grand larceny, the court appointed a commission of three to examine him and report to the court as to his sanity. The commission reported to the court in substance that he was not insane, but mentally impaired. Thereupon the court committed him to a State lunatic asylum.
    
      William Hawkins, for the appellant.
    
      Robert 8. Johnstone [William Travers Jerome with him on the brief], for the respondent.
   Gaynor, J.:

Section 658 of the Code of Criminal Procedure provides that if a defendant in confinement under an indictment appears to he insane ” the court may appoint a commission to examine him and report to the court as to his sanity.”- The next section provides that if the commission find the defendant “ insane ” the trial must he suspended until he becomes sane, and the court, if it deem his discharge dangerous to the public peace or safety, must commit him to a State lunatic asylum until he becomes sane.

The jurisdiction of the court to commit the defendant to a lunatic asylum is thus made to depend on the commission reporting him insane. This the commission did not do. Instead of plainly reporting that the defendant was insane or not it wrote what it calls an opinion per curiam,” which leaves the matter referred to them in a state of confusion.

The order should be reversed and the defendant' discharged from the lunatic asylum and delivered over to the custody and confinement whence he came.

Woodward, Jenks and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and defendant discharged from the lunatic asylum and delivered over to the custody and confinement whence he came.  