                                 No. 12753

          I N T E SUPREME COURT O T E STATE O M N A A
               H                 F H         F OTN

                                       1974



STATE O M N A A ex rel. WILLIAM T. M A I N ,
       F OTN

                            Relator,



T E DISTRICT C U T O T E FIFTH JUDICIAL
 H            OR    F H
DISTRICT O THE STATE O M N A A I N AND
          F            F OTN,
FOR THE COUNTY O BEAVERHEAD, and THE
                F
HONORABLE F A K E. BLAIR, P r e s i d i n g Judge,
           RN

                            Respondents.




ORIGINAL PROCEEDING :

Counsel o f Record:

      For R e l a t o r :

              Smith, Smith and Sewell, Helena, Montana
              Chadwick H , Smith argued, Helena, Montana

      For Respondents:

             Hon. Robert L. Woodahl, Attorney General, Helena,
              Montana
             W. G. G i l b e r t 111, County Attorney, argued, D i l l o n ,
              Montana



                                        Submitted:   May 23, 1974



Filed :   JvL 8 1 1914
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

      This is an original proceeding wherein relator William T.
Main petitions for a writ of supervisory control or other appropriate
writ seeking in effect dismissal of an Information and a finding of
acquittal by the district court of the fifth judicial district,
county of Beaverhead.
      The issues here arose out of the filing of an Information
charging the crimes of rape and assault in the first degree.     The
Information was filed on March 2, 1971. Relator was represented by
counsel who represented to the court that relator suffered from a
mental defect and required a psychiatric examination, The court
granted counsel's request and petitioner was committed to the state
hospital for evaluation without an arraignment.
      Following examination and evaluation, a report was made to
the court by Dr. M.F. Gracia, clinical director at the state
hospital.   The report stated relator was suffering from a mental
defect or disease which prevented him from conforming his conduct
to the requirements of the law at the time of the criminal conduct
charged and further that relator's capacity to understand the
proceedings against him and assist in his own defense was impaired.
This report was filed on April 14, 1971.   On   July 3, 1971, following
the submission of briefs by both parties, the court found relator
was suffering from mental disease which prevented him from under-
standing the nature of the proceedings against him and from assisting
in his own defense.   The court committed relator to the state hospital
until such time as he was able to understand the nature of the pro-
ceedings against him and to assist in his own defense,
      Relator remained at the state hospital pursuant to the court's
order, undergoing treatment under the direction of Dr. Gracia.      On

August 4, 1972, relator's guardian moved the court to allow relator
to be transferred to American Lake Hospital in Tacoma, Washington,
( a federal hospital) for more extended treatment.    This treatment
was recommended by a staff psychiatrist at the state hospital.
No action was taken by the court for nearly one year, when on July
9, 1973, relator moved the court to dismiss the Information and
grant a judgment of acquittal on the grounds that at the time of
the crime relator was suffering from a mental disease or defect
which rendered him unable to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law.
      A hearing was had on relator's motion on November 13, 1973,
Relator offered the testimony of Dr. Gracia and the state offered
the testimony of a Dr. Stanley G. Moisey, a practicing psychiatrist
from Missoula, Montana.      The transcript of this hearing along with
all of the files and exhibits of this case are before this Court
for consideration.
      Dr. Gracia testified as to relator's psychiatric history:
      1. That he had first examined relator in 1966 on an emergency
commitment and relator was under his care for some two and a half
months.
      2.   That relator had a history of mental illness dating back
to 1962 according to medical records of the United States Army.
These records indicate he was treated at Letterman General Hospital
in San Francisco for psychiatric disorders.
      3.   That from 1962 to the time of the alleged crimes, relator
had a history of commitment and recommitment in mental institutions
including the American Lake Hospital in Washington.
      Based on the treatments given relator at the state hospital
under the supervision of Dr. Gracia and the medical records
available from other mental treatment institutions, Dr. Gracia
diagnosed relator's condition to be acute schizophrenia, schizophrenia
paranoid type, anti-social personality and schizophrenic-chronic
undifferentiated type.       Dr. Gracia's opinion, after examining and
treating relator, was that he      I
                                   '   * * * was not   able to conform his
conduct to the requirements of the law at the time of the criminal
conduct charged   * * *. "
          D r . Moisey t e s t i f i e d f o r t h e s t a t e and s t a t e d he had
examined r e l a t o r between October 18 and October 29, 1973.                                 In
a d d i t i o n he interviewed t h e v i c t i m , t h e county a t t o r n e y of Beaver-
head County and reviewed t h e c a s e h i s t o r i e s of t h e s t a t e h o s p i t a l
and t h e American Lake H o s p i t a l , Tacoma, Washington, i n r e g a r d t o
relator.
          With t h i s background of i n f o r m a t i o n , D r . Moisey t e s t i f i e d
t h a t i n h i s opinion he d i d "not s e e evidence t h a t he was so g r o s s l y
mentally d i s t u r b e d t h a t he was unable t o a p p r e c i a t e what he was
                                 I'
doing a t t h e t i m e .             I n h i s opinion r e l a t o r was p r e s e n t l y capable
of s t a n d i n g t r i a l .
          I n weighing t h e c o n s i d e r a t i o n t o b e given D r . ~ o i s e y ' s
testimony we n o t e t h a t j u s t t h r e e q u e s t i o n s b e f o r e t h e above quoted
testimony, D r . Moisey t e s t i f i e d :              "Well from m examination of
                                                                     y
William Main, i t was n o t p o s s i b l e f o r m t o determine h i s s t a t e of
                                                   e
mind a t t h e time o f t h e a l l e g e d o f f e n s e i n 1971."               Dr. ~ o i s e y ' s
examination of r e l a t o r occurred two and one h a l f y e a r s a f t e r t h e
o f f e n s e and no testimony was o f f e r e d by D r . Moisey o r t h e s t a t e
w i t h r e g a r d t o r e l a t o r ' s a b i l i t y a t t h e time of t h e a l l e g e d o f f e n s e
t o conform h i s conduct t o t h e requirements of t h e law.
          O December 11, 1973, a f t e r t h e h e a r i n g , Judge B l a i r e n t e r e d
           n
an o r d e r denying r e l a t o r ' s motions on t h e b a s i s t h a t D r . Moisey
expressed an opinion t h a t :                   ( a ) i n s p i t e of h i s h i s t o r y of mental
d i s e a s e , defendant has t h e c a p a c i t y t o understand t h e proceedings
a g a i n s t him and t o a s s i s t i n h i s own defense; (b) t h a t defendant
was a b l e t o a p p r e c i a t e t h e c r i m i n a l i t y of h i s conduct and t o conform
h i s conduct t o t h e requirements of t h e law a t t h e time of t h e
c r i m i n a l conduct charged.               On t h a t b a s i s Judge B l a i r s t a t e d t h a t a
f a c t u a l q u e s t i o n f o r t h e j u r y was r a i s e d .
          On December 24, 1973, t h e county a t t o r n e y dismissed t h e o r i g i n a l
Information and r e f i l e d a n i d e n t i c a l Information c h a r g i n g r e l a t o r w i t h
t h e same o f f e n s e s .
          Three i s s u e s a r e p r e s e n t e d i n t h i s a p p l i c a t i o n f o r a w r i t of
s u p e r v i s o r y c o n t r o l , a l l a r e d i r e c t e d t o t h e t r i a l c o u r t ' s abuse o f
discretion:
      1.      The district court committed reversible error in refusing
to grant relator's motion to dismiss and for judgment of acquittal
on the grounds that the only competent evidence shows that at the
time of the alleged offense relator was unable to appreciate the
criminality of his conduct or to conform his condust to the re-
quirements of the law because of a mental disease or defect.
      2. The district court committed reversible error in refus-
ing to dismiss the Information on the ground that so much time had
elapsed since the arrest that it would be unjust to resume the
criminal proceedings under the circumstances of this case.
      3.      The issues presented by this application are not render-
ed moot by the action of the district court in dismissing the In-
formation against relator and allowing immediate refiling of an
identical Information.
      In our discussion of the issues raised we will consider
the issues as one.
      Relator argues that in failing to grant relator's motion
to dismiss and for a judgment of acquittal the trial court com-
mitted error.     The controlling statutes are sections 95-501, 505,
507, R.C.M.     1947. Under the provisions of section 95-501, in order
to sustain a criminal charge the state must be able to prove
criminal intent:
      "95-501. Mental disease or defect excluding
      responsibility. (a) A person is not responsible
      for criminal conduct if at the time of such conduct
      as a result of mental disease or defect he is unable
      either to appreciate the criminality of his conduct
      or to conform his conduct to the requirements of law,I I
      In this case the defense of mental disease or defect was
given and the district court, following the provisions of section
95-505, R.C.M.     1947, sent relator to the state hospital for an
evaluation and to determine whether or not relator understood the
criminality of his conduct or could conform his conduct to the
requirements of the law at the time of the criminal conduct charged
or had the capacity to assist in his defense.
Section 95-505, R.C.M.              1947, provides:
"95-505.           P s y c h i a t r i c examination of defend-
a n t with r e s p e c t t o mental d i s e a s e o r d e f e c t .         (a)
Whenever t h e defendant has f i l e d a n o t i c e of i n -
t e n t i o n t o r e l y on t h e defense of mental d i s e a s e o r
d e f e c t excluding r e s p o n s i b i l i t y , o r t h e r e i s reason
t o doubt h i s f i t n e s s t o proceed, o r reason t o be-
l i e v e t h a t mental d i s e a s e o r d e f e c t of t h e defend-
a n t w i l l otherwise become an i s s u e i n t h e cause,
t h e c o u r t s h a l l appoint a t l e a s t one (1) q u a l i f i e d
p s y c h i a t r i s t o r s h a l l request t h e superintendent of
t h e Montana s t a t e h o s p i t a l t o designate a t l e a s t one
(1) q u a l i f i e d p s y c h i a t r i s t , which designation may be
o r include himself, t o examine and r e p o r t upon t h e
mental condition of t h e defendant. The c o u r t may
order t h e defendant t o be committed t o a h o s p i t a l
o r o t h e r s u i t a b l e f a c i l i t y f o r t h e purpose of t h e
examination f o r a period of n o t exceeding s i x t y
( 6 0 ) days o r such longer period a s t h e c o u r t d e t e r -
mines t o be necessary f o r t h e purpose and may d i r e c t
t h a t a q u a l i f i e d p s y c h i a t r i s t r e t a i n e d by the defend-
a n t be permitted t o witness and p a r t i c i p a t e i n t h e
examination.
II
  (b) I n such examination any method may be employed
which i s accepted by t h e medical profession f o r
t h e examination of those a l l e g e d t o be s u f f e r i n g
from mental d i s e a s e o r d e f e c t .

"(c) The r e p o r t of t h e examination s h a l l include
t h e following :

"(1) A d e s c r i p t i o n of t h e n a t u r e of t h e examina-
tion;

"(2)  A diagnosis of t h e mental condition of t h e
defendant;

"(3) I f t h e defendant s u f f e r s from a mental d i s -
e a s e o r d e f e c t , an opinion a s t o h i s c a p a c i t y t o
understand t h e proceedings a g a i n s t him and t o
a s s i s t i n h i s own defense.

"(4) When a n o t i c e of i n t e n t i o n t o r e l y on t h e
defense of i r r e s p o n s i b i l i t y has been f i l e d , an
opinion a s t o t h e a b i l i t y of t h e defendant t o ap-
p r e c i a t e t h e c r i m i n a l i t y of h i s conduct o r t o con-
form h i s conduct t o t h e requirements of law a t t h e
time of t h e c r i m i n a l conduct charged; and
"(5) When d i r e c t e d by t h e c o u r t , an opinion a s t o
t h e c a p a c i t y of t h e defendant t o have a p a r t i c u -
l a r s t a t e of mind which i s an element of t h e offense
charged.
!I
  I f t h e examination cannot be conducted by reason
of t h e unwillingness of t h e defendant t o p a r t i -
c i p a t e t h e r e i n , t h e r e p o r t s h a l l so s t a t e and
s h a l l include, i f p o s s i b l e , an opinion a s t o
whether such unwillingness of t h e defendant was
t h e r e s u l t of mental d i s e a s e o r d e f e c t .
      ' he report of the examination shall be filed (in
      triplicate) with the clerk of court, who shall
      cause copies to be delivered to the county attorney
      and to counsel for the defendant.It
      Having followed the above procedural statutes, and having
received the statements of evaluation and prognosis of the two
psychiatrists the court was then confronted with the alternative
actions that can be applied under the provisions of section 95-
507( ) R.C.M.
    a,            1947:
       "95-507. Determination of irresponsibility on
       basis of report--access to defendant by
       psychiatrist of his own choice--form of expert
       testimony when issue of responsibility is tried.
       ( ) If the report filed pursuant to section
        a
       95-505 finds that the defendant at the time of
       the criminal conduct charged suffered from a
       mental disease or defect which rendered him unable
       to appreciate the criminality of his conduct or to
       conform his conduct to the requirements of law,
       and the court, after a hearing if a hearing is requested
       by the attorney prosecuting or the defendant, is satis-
       fied that such mental disease or defect was sufficient
       to exclude responsibility, the court on motion of the
       defendant shall enter judgment of acquittal on the
       ground of mental disease or defect excluding respon-
       sibility. "
      The problem here is whether under the discretionary pro-
visions of section 95-507, there was an abuse of discretion
 in giving such weight to the testimony of Dr. Moisey as to now
require the question of mental competency to go to a jury.
      Respondent court argues that this is a matter entirely
up to the discretion of the trial court; that there have been
 three hearings before the court during which time the court
 could observe relator and that in employing Dr. Moisey the
 court could and did get medical testimony that, in the court's
 opinion, was such that he (the trial judge) felt the matter
 should be submitted to a jury.
      Relator argues that Dr. Moisey's testimony failed to raise
 a factual question, noting that Dr. Moisey did not, and he testi-
 fied he could not, testify as to relator's mental condition at
 the time of the criminal act charged, as required by section
 95-507, R.C.M.   1947. We agree.
       The s t a t u t e was p a r t i c u l a r l y designed t o procedurally
process j u s t such a c a s e a s we have before us here.                        Relator
has been i n custody over t h r e e and one-half years a t t h e s t a t e
h o s p i t a l and t h e overwhelming weight of a l l of t h e testimony,
much of which i s based on t h e medical records before t h e c o u r t ,
i s t h a t r e l a t o r s u f f e r s from such mental d i s e a s e o r d e f e c t a s
t o exclude r e s p o n s i b i l i t y f o r h i s a c t s .
       There i s no medical testimony c o n t r a r y t o D r .                  ~racia's
testimony t h a t r e l a t o r "was not a b l e t o conform h i s conduct t o
t h e requirement of t h e law a t t h e time of t h e criminal conduct
charged."        D r . Gracia based t h i s opinion on (1) an examination
of r e l a t o r s e v e r a l weeks a f t e r t h e a l l e g e d crime; (2) upon ex-
t e n s i v e psychological t e s t i n g and medical examination including
observation by s t a f f personnel every day f o r s e v e r a l y e a r s ; ( 3 )
upon t h e study of r e l a t o r ' s s o c i a l h i s t o r y and h i s t o r y of men-
t a l i l l n e s s d a t i n g back t o 1962; and ( 4 ) t h e d o c t o r ' s personal
c o n t a c t with r e l a t o r beginning i n 1966.
        I n S t a t e ex r e l . K r u t z f e l d t v. D i s t r i c t Court,   - .
                                                                                  Mont

-
9        515 P.2d 1312, 1315, 30 St.Rep.                    993, t h i s Court discussed
t h e procedures provided f o r i n s e c t i o n 95-507(a), R.C.M.                     1947:
        "   ***        That comment makes i t c l e a r t h a t i f , i n
       t h e judge's opinion and a f t e r a hearing i f r e -
       quested by e i t h e r a t t o r n e y , a defendant was c l e a r 1
       s u f f e r i n g from mental d i s e a s e a t t h e time of 7i-
                                                                      t e
       crime then t h e judge can a c q u i t t h e defendant and
       have him committed t o a s t a t e i n s t i t u t i o n forthwith.
       The purpose i s p l a i n - - t o avoid a c o s t l y t r i a l where
       t h e mental d e f e c t i s p l a i n and obvious. *         *" *
       The e n t r y of judgment of a c q u i t t a l by the t r i a l c o u r t
does n o t mean t h e r e l a t o r goes f r e e .          The provisions of s e c t i o n
95-508(a), R.C.M.           1947, procedurally provide f o r t h e s e cases.
I n S t a t e v. Taylor, 158 Mont. 323, 335, 4 9 1 P.2d 877, t h i s Court
i n i n t e r p r e t i n g s e c t i o n 95-508(a) s a i d t h a t a person so committed
would n o t be r e l e a s e d from t h e s t a t e h o s p i t a l u n l e s s t h e r e l e a s e
was recommended by t h e superintendent and t h e person committed
could e s t a b l i s h a t a hearing held before t h e d i s t r i c t judge
who signed the commitment, beyond a reasonable doubt that he
would not be dangerous in the forseeable future. We noted in
Taylor, that the judicial supervision under these circumstances
$1
 is to protect the public as well as the individual by insur-
ing that standards for release are not subverted by allowing
the final determination to be according to the individual sub-
jective standards of the hospital staff."   Under Montana stat-
utes only the trial court, the committing court, has the power
to discharge or conditionally release.
       Therefore, we direct the trial court to reverse its order
entered on December 11, 1973 and enter a judgment of acquittal
on the ground of mental disease or defect excluding responsibil-
ity.   Thereafter, we direct that commitment proceedings be held
in accord with the provisions of section 95-507, R.C.M.   1947.


                               i

                                            Justice 4
We concur:                         I
