
187 S.E.2d 13 (1972)
280 N.C. 612
In the Matter of John J. TEW, Jr.
No. 59.
Supreme Court of North Carolina.
March 15, 1972.
*16 Robert Morgan, Atty. Gen., and G. Eugene Boyce, Raleigh, Sp. Counsel, for the State.
Yarborough, Blanchard, Tucker & Denson by Charles F. Blanchard and Irvin B. Tucker, Jr., Raleigh, for petitioner appellant.
SHARP, Justice:
The one question presented by this appeal is the validity of the last sentence of G.S. § 122-86, italicized below. In whole, the section provides:
"Persons acquitted of crime on account of mental illness; how discharged from hospital.No person acquitted of a capital felony on the ground of mental illness, and committed to the hospital designated in § 122-83 shall be discharged therefrom unless an act authorizing his discharge be passed by the General Assembly. No person acquitted of a crime of a less degree than a capital felony and committed to the hospital designated in § 122-83 shall be discharged therefrom except upon an order from the Governor. No person convicted of a crime, and upon whom judgment was suspended by the judge on account of mental illness, shall be discharged from said hospital except upon the order of the judge of the district or of the judge holding the courts of the district in which he was tried: Provided, that nothing in this section shall be construed to prevent such person so confined in the hospitals designated in § 122-83 from applying to any judge having jurisdiction for a writ of habeas corpus. No judge issuing a writ of habeas corpus upon the application of such person shall order his discharge until the superintendents of the several State hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public." (Italics ours.)
The percursor of G.S. § 122-86 was N.C. Public Laws ch. 1, § 67 (1899). In pertinent part it provided: "No person acquitted of a capital felony, on the ground of insanity, and committed to the hospital for the dangerous insane, shall be discharged therefrom unless an act authorizing his discharge be passed by the general assembly.. . ."
In 1904, in In Re Boyett, 136 N.C. 415, 48 S.E. 789, this Court declared the foregoing section invalid as a legislative attempt to infringe upon the Court's constitutional prerogative and duty to issue the writ of habeas corpus upon proper application. The Court said: A person restrained of his liberty cannot be required to "await the action of the Legislature before he can have the cause thereof inquired into." Under the constitutional guaranty that the privilege of the writ of habeas corpus shall not be suspended, "every person restrained of his liberty is entitled to have the cause of such restraint inquired into by a judicial officer. The judicial department of the government cannot by any legislation be deprived of this power or relieved of this duty. It must afford to every citizen a prompt, complete, and adequate remedy by due process for every unlawful injury to his person or property. This is absolutely essential to a constitutional government." Id. at 423, 48 S.E. at 792. We reaffirm the decision in In Re Boyett, supra.
Inexplicably, after the decision in Boyett, the legislature of 1905 attempted to cure the constitutional infirmities of Section 67 by re-enacting the invalidated section ipsissimis verbis with the addition of the following provisions: "Provided, that *17 nothing in this section shall be construed to prevent such person so confined in the hospitals for the dangerous insane from applying to any judge having jurisdiction for a writ of habeas corpus. No judge, issuing a writ of habeas corpus upon the application of such person, shall order his discharge, until the superintendents of the several state hospitals shall certify that they have examined such person and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public." Rev. § 4620 (1905).
Needless to say, the re-enactment of invalidated Section 67 did not validate it. The quoted additions, with insignificant alterations in subsequent years, are codified in the last two sentences of G.S. § 122-86. The final sentence clearly purports to prohibit a judge from ordering the discharge of any such person from Dorothea Dix Hospital or Cherry Hospital (the hospitals designated in G.S. § 122-83) "until the superintendents of the several State hospitals shall certify that they have examined him and find him to be sane, and that his detention is no longer necessary for his own safety or the safety of the public." Because of the conclusion we reach, we need not decide whether the statute designates the superintendents of Dorothea Dix Hospital and Cherry Hospital or the superintendents of all the State's mental hospitals.
Tew contends that the certification requirement of G.S. § 122-86 is unconstitutional, and Judge Hall's finding that he is now sane and safe requires his unconditional release. He asserts: (1) to make such certification an indispensable requisite for his release, without providing any recourse in the event a superintendent should arbitrarily or erroneously refuse certification, deprives him of due process of law, N.C.Const. art. I, § 19 (1970), and (2) to prohibit a judge from releasing him on a writ of habeas corpus under any circumstances until the superintendents have issued the required certificates suspends the privilege of the writ of habeas corpus as to him and infringes upon the court's prerogative and duty to issue the writ, N.C.Const. art. I, § 21 (1970). These contentions require serious consideration.
A verdict of not guilty due to insanity constitutes a full acquittal, and one thus acquitted "is entitled to all the protection and constitutional rights as if acquitted upon any other ground." In In Re Boyett, supra at 419, 48 S.E. at 791. See 68 Yale L.J. 293 (1958). However, such a person will be held for an inquisition and, if it is determined that he is then insane, he will be committed to a State hospital. G.S. § 122-84. The commitment of such a person following an acquittal is imposed for the protection of society and the individual confinednot as punishment for crime. Salinger v. Superintendent, 206 Md. 623, 112 A.2d 907 (1955); In Re Clark, 86 Kan. 539, 121 P. 492 (1912). He can be confined in an asylum only "`until his mental health is restored, when he will be entitled to his release, like any other insane person.'" In Re Boyett, supra, 136 N.C. at 419, 48 S.E. at 791. See generally, 38 Tex.L.Rev. 849 (1960); 112 U.Pa.L. Rev. 733 (1963-64); 1961 Duke L.J. 481.
In G.S. § 122-86 the legislature clearly manifested its dual purpose to protect the public from the premature release of "a criminally insane" person and to protect such an individual from himself. The certification requirement also discloses the legislature's conviction that judges are not qualified to make medical findings, and that the institutional psychiatrists are better equipped to determine whether such a person has recovered his sanity and is no longer dangerous. The requirement of examination and certification from each of the several superintendents divides the responsibility in the event insanity recurs in a petitioner certified to be sane and safe. Presumably multiple certification diminishes the danger that a superintendent, fearful of public censure in the event of a recurrence, will keep a patient confined longer than is reasonably necessary.
*18 The question before us, however, is not whether the purpose and premise upon which the legislature based the statute are sound, but whether it can constitutionally make the court's power to release petitioner upon habeas corpus depend solely upon certification by the several superintendents that he is now sane and safe. The answer is NO. The power of the court, in a proper case, to discharge a person acquitted of crime because of insanity, cannot be thus circumscribed. Such a condition would deprive the court of any exercise of judicial discretion and nullify its power to release an inmate being illegally detained in a mental hospital. In Re Boyett, supra. The legislature, in one sentence of its 1905 enactment, recognized the right of a person confined in a mental hospital to apply to a judge for a writ of habeas corpus and, in the next, imposed a condition which would effectively defeat the purpose of the writ.
Psychiatry is not an exact science, and hospital doctors are not infallible. Yet G. S. § 122-86 would not permit a petitioner to establish his restoration to sanity by the testimony of other qualified psychiatrists. It provides no remedy or procedure whatever to determine a charge (such as the one made here) that a superintendent arbitrarily withheld a certificate, acted in bad faith, or was honestly mistaken in judgment. It merely decrees, with complete finality, that no judge shall discharge a person acquitted of crime because of insanity until the superintendents of the several State hospitals have certified to his sanity and safety. It does not, therefore, meet the requirements of due process. We hold that the absolute certification requirement of G.S. § 122-86 is unconstitutional. See Rogers v. State, 459 S.W.2d 713, 716-717 (Tex.Civ.App.1970).
G.S. § 122-86 has not been materially changed since 1905 and the changes then made created a mishmash. The section is now "a thing of shreds and patches," and its presence in the General Statutes is deceptive and confusing. The first sentence was declared unconstitutional in 1904 for reasons which are equally applicable to the second. The third sentence is a part of G.S. § 122-84, and the fourth is a constitutional guaranty. This decision invalidates the fifth and last sentence.
When the legislature has prescribed adequate procedures whereby one acquitted of crime because of mental illness may have determined the issue of his restoration to sanity, the general rule is that one who seeks to be discharged from a mental hospital on that ground must show that he has exhausted the statutory remedy before resorting to habeas corpus. Annot., 73 A.L.R. 567 (1931); annot., 95 A.L.R.2d 54 (1964); 39 Am.Jur.2d Habeas Corpus § 87 (1968); 21 Am.Jur.2d Criminal Law § 61 (1965); 44 C.J.S. Insane Persons § 131 b (1945). In this State, there is no such statutory procedure. G.S. § 122-84 specifies the procedure whereby the authorities having the custody of persons acquitted of crime on the grounds of insanity may initiate proceedings for his release. One who seeks his own release must resort to habeas corpus proceedings. See 41 Am.Jur.2d Incompetent Persons § 46 (1968). In that proceeding he has the burden of proving not only that he has recovered his sanity, but that his release would not endanger himself or others. Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943 (1960). See 21 Am.Jur. 2d Criminal Law § 58 (1965); 39 C.J.S. Habeas Corpus § 48 (1944).
In Ragsdale, Burger, Circuit Judge, now Chief Justice of the United States, noted that one who has been committed to a mental institution in consequence of having obtained a verdict of not guilty by reason of insanity belongs to an exceptional class of people. He not only has the burden of proof when he seeks his release, said Judge Burger, but "[i]n a `close' case even where the preponderance of the evidence favors the petitioner, the doubt, if reasonable doubt exists about danger to the public or the patient, cannot be resolved so as to risk *19 danger to the public or the individual. A patient may have improved materially and appear to be a good prospect for restoration as a useful member of society; but if an `abnormal mental condition' renders him potentially dangerous, reasonable medical doubts or reasonable judicial doubts are to be resolved in favor of the public and in favor of the subject's safety." Id., 281 F. 2d at 947.
The manner in which this case comes to us presents practical problems. Since Judge Hall remanded petitioner to the custody of Dorothea Dix Hospital without declaring the certification requirement of G. S. § 122-86 unconstitutional the State did not except to the findings of fact or appeal. Satisfied with Judge Hall's findings, petitioner did not bring up the evidence which Judge Hall heard and upon which presumably he based his findings. As previously noted, petitioner's sole assignment of error is that the judge erred in failing to declare the statute unconstitutional and to release him upon the facts found.
Petitioner's position is not without its logic. However, we concluded that the present posture of the case does not justify our remanding it with directions that a judgment be entered ordering Tew's immediate release. In the first place, we do not know what Tew's mental condition is today. More than sixteen months have elapsed since Judge Hall made his findings. Although he found that Tew was then sane he also found that he had shown "symptoms of paranoia which are now in remission; and the Superintendent of Dorothea Dix Hospital does not recommend his unconditional release."
"The term `remission' at best means a temporary recovery, perhaps a temporary, partial recovery." In Re Rosenfield, 157 F.Supp. 18, 22 (D.C.1957). Since Tew was acquitted of first-degree murder by reason of insanity the public interest requires that we make no assumptions about his present mental condition. Furthermore, at the time Judge Hall made his findings he was under a misapprehension as to the applicable law. Even though he expressed doubt about the constitutionality of the certification requirement of G.S. § 122-84, he held he was without authority to release him until the certificates were obtained. Under this view, any findings with reference to Tew's mental condition were superfluous and without consequences. It does not appear that, but for the statute, he would have ordered Tew's unconditional release in the face of Dr. Rollins' refusal to recommend it. This refusal, which Judge Hall incorporated in his findings, bolsters our conclusion that the judgment should be vacated and this proceeding remanded for a hearing de novo. It is so ordered.
At the hearing the burden of proof will be upon petitioner. The judge will consider all the evidence offered by both petitioner and the State and make his findings therefrom. According to the facts found, Tew may be granted his unconditional release or he may be remanded to the custody of Dorothea Dix Hospital. Further, we perceive no legal reason why he could not be granted a conditional probationary release if his mental condition be found to justify it. See G.S. § 122-67 (1964). We note that Tew is not now a person charged with crime or one upon whom judgment has been suspended; nor is he one awaiting sentence.
The decision of the Court of Appeals is
Reversed.
