IN RE BUCHANAN, 129 Cal. 330 (1900)
61 P. 1120
In re HUGH BUCHANAN, on Habeas Corpus.
Crim. No. 607.
Supreme Court of California,
In Bank.
July 28, 1900.

  HABEAS CORPUS in the Supreme Court to A.M. Gardner, Medical
Superintendent of Napa State Hospital for the Insane, to
determine the sanity of Hugh Buchanan, charged with murder in the
Superior Court of Yuba County, and to obtain his return to said
county for trial. E.A. Davis, Judge.

  The facts are stated in the opinion of the court.

  Theodore A. Bell, E.L. Webber, and Henry C. Gesford, for
Petitioner.

  Tirey L. Ford, Attorney General, for the Respondent.
Page 331

  BEATTY, C.J.

  Hugh Buchanan was brought to trial in Yuba county upon an
information charging him with the crime of murder. After the
trial had been several days in progress it was suspended upon a
suggestion that the prisoner was then insane, and a special jury
was formed for the trial of that issue. This jury, after hearing
evidence and the instructions of the court, brought in a verdict
to the effect that the defendant was insane, upon which he was
committer to the insane asylum at Napa, now known as the Napa
State Hospital, where he is still confined by Dr. A.M. Gardner,
the medical superintendent of that institution, without other
authority than said commitment. The proceedings in the superior
court following the suggestion of the prisoner's insanity were
those prescribed in sections 1367 to 1373 of the Penal Code, and
the commitment conformed to the statute in directing the
detention of the defendant in the insane asylum only until he
should be sane (Pen. Code, sec. 1370), in which event it would
become the duty of the superintendent to give immediate notice to
the sheriff of Yuba county, and of the sheriff to return the
prisoner without delay to the proper custody in order that the
court might proceed with his trial. (Pen. Code, sec. 1372.)

  It is now claimed in behalf of the prisoner that he has been
for several years past entirely restored to sanity, and that his
retention at the asylum has become unlawful. It is not claimed
that he should be set at liberty, but that he should be returned,
as the law provides, to the proper custody of the sheriff of Yuba
county, and that he should have a speedy trial upon the charge of
murder there pending against him.

  There is no controversy, and none is possible, as to the
soundness of this conclusion, if the prisoner has really become
sane; but it is strongly insisted in behalf of the officers of
the asylum not only that he is not sane, but that he can never
become so, and this is the sole question now to be determined
upon the voluminous record of conflicting evidence submitted at
the hearing upon the return to our writ of habeas corpus.

  A number of the more important questions originally pertaining
to this controversy were finally determined in the case of
Gardner v. Jones, 126 Cal. 614. That was an original
Page 332
application to this court by the superintendent of the insane
asylum for a writ of prohibition to the judge of the superior
court, to prevent the hearing of a petition in behalf of Buchanan
for the same relief sought in the present proceeding. It was
there contended that the insanity law of 1897 (Stats. 1897, p.
311) has made the superintendent of the asylum the sole and final
judge, in a case of this kind, whether the prisoner has become
sane, and that the courts no longer have the power to conduct the
inquiry by habeas corpus, or otherwise. It was held against this
contention that the question of unlawful restraint of the liberty
of a citizen is, and must be as long as our present constitution
endures, a judicial question to be determined by the courts, and
that the statute referred to would be unconstitutional if it
required the construction contended for. The statute, however,
was construed to mean nothing more than this: That it is the duty
of the superintendent to send back a prisoner committed under
sections 1367 to 1372 of the Penal Code as soon as he becomes
sane, in order that the court may proceed to trial or judgment in
his case; but if he does not do so the prisoner may assert his
right to a speedy trial by means of the writ of habeas corpus,
and that if the court after a hearing concludes that the prisoner
is sane it has the power, and it is its duty, to order him into
the custody of the court where the charge against him is pending,
in order that that court may bring him to trial or pronounce
judgment. In consequence of this decision the superior judge
proceeded with the hearing upon return to the writ of habeas
corpus issued by him, and having concluded upon the evidence that
Buchanan was still insane, made an order remanding him to the
custody of Dr. Gardner. Thereupon the present proceeding was
commenced in this court, and upon the same evidence submitted to
the superior judge, and some additional testimony, we must now
decide the question of fact whether Buchanan has become sane.

  The question, however, is not whether he has become sane in
every sense of the word, but whether he has become sane in the
sense of the statute, which requires a suspension of the
proceedings in a criminal cause whenever it is found that the
defendant is presently insane. In other words, if there is a
Page 333
difference between the medical view of insanity and the view upon
which the statute is founded, the question of sanity or insanity
is to be determined with reference to the latter as
contradistinguished from the former view. That there is such a
difference is notorious, and is clearly illustrated by the
testimony in the present case when compared with the origin and
reason of the statutory provisions. These provisions establish
nothing new in criminal procedure. They merely put in statutory
form a well-known regulation of the common law — a regulation
applicable to lunatics or madmen. Blackstone, in his
Commentaries, after stating the rule that idiots and lunatics are
not chargeable with their own acts, continues as follows: "Also,
if a man in his sound memory commits a capital offense, and
before arraignment for it he becomes mad, he ought not to be
arraigned for it; because he is not able to plead to it with that
advice and caution that he ought. And if, after he has pleaded,
the prisoner becomes mad, he shall not be tried — for how can he
make his defense? If, after he be tried and found guilty, he
loses his senses before judgment, judgment shall not be
pronounced, and if after judgment he becomes of nonsane memory
execution shall be stayed, for, peradventure, says the humanity
of the English law, had the prisoner been of sound memory he
might have alleged something in stay of judgment or execution."
(4 Blackstone's Commentaries, 24.)

  This short quotation shows what all the books and treaties and
decisions on the subject show that the true and only reason why
an insane person should not be tried is "that he is disabled by
the act of God to make a just defense, if he have one." When the
rule became a part of the common law, modern views of insanity
were unknown. No sort of insanity was recognized except that
which manifested itself in mental deficiency or in mental
derangement. A congenital idiot, or a raving lunatic, was
understood to be insane, but in the absence of any sensible loss
of memory or material impairment of the intellectual faculties,
a man was counted sane. If he could remember events and could
reason logically, he was not within the letter or the reason of
the rule which suspended proceedings against a madman or a
lunatic. And if he was not within the common-law rule neither is
he within the rule of the statute, which merely re-enacts the
Page 334
common law and had no other purpose than to suspend proceedings
against a defendant who is by reason of mental infirmity
incapable of making his defense. A similar provision in the law
of New York was very thoroughly considered in the case of Freeman
v. People, 4 Denio. 9,[fn1] where the court, upon an elaborate review
of the authorities, stated its conclusion as follows: "The
statute is in affirmance of the common-law principle, and the
reason on which the rule rests furnishes a key to what must have
been the intention of the legislature. If, therefore, a person
arraigned for a crime is capable of understanding the nature and
object of the proceedings against him; if he rightly comprehends
his own condition in reference to such proceedings and can
conduct his defense in a rational manner, he is, for the purpose
of being tried, to be deemed sane, although on some other
subjects his mind may be deranged or unsound."

  If this is the true construction of the New York statute, as I
have no doubt it is, it is equally the true construction of our
own, and it is very plain from the evidence before us that
Buchanan is not now, and has not been for several years, insane
in the sense of the statute. The evidence all shows that he is in
possession of every faculty requisite to the defense of the
accusation against him. His memory is unimpaired, and his
reasoning faculties, although they may not be equal to the
promise of his youth, are far above those of the average man. His
insanity is of a character which does not manifest itself in any
apparent weakness of intellect or failure of memory, but may be
best described as a sort of chronic and latent disease of the
brain, which under the excitement of intoxicating drink, to which
he is predisposed, will lead him to the commission of criminal
acts. To be more specific, it appears that until he was about
twenty years of age he was particularly intelligent and
precocious and distinguished by many amiable traits of character.
About that time he began to indulge in the excessive use of
intoxicating drink, the consequence of which was a serious
illness which undoubtedly affected his brain. Upon his recovery,
or partial recovery, after a protracted period of convalescence,
it was discovered that his character was greatly changed. He
Page 335
had lost all ambition to excel in his chosen profession; he had
become aimless and trifling; his moral character had
deteriorated; he was alienated from his family and took up the
life of a wanderer, going about from place to place and
supporting himself by menial employments. At frequent intervals
his appetite for intoxicants became uncontrollable, and when
drinking he was disposed to acts of violence, besides being
subject to occasional temporary delusions. The medical testimony
based upon these facts is that his brain or its integument was
permanently injured by the sickness above mentioned, and that his
condition has been such ever since, and will so remain as long as
he lives; that if set at liberty he will inevitably take to
drinking, and that under the influence of intoxicants he will be
dangerous. There is a very strong preponderance of expert
testimony to this effect, and we cannot doubt that the medical
gentlemen who have so testified are competent to decide such
matters.

  But this is a species of insanity which the statute governing
this case does not contemplate. It is not such insanity as would
disable him to make his defense. The same witnesses that testify
that he is insane admit that during his long stay at the Napa
asylum he has exhibited no symptom of insanity. He reasons as
other men do, he has no delusions, he is more than ordinarily
intelligent, his memory is unimpaired, he appreciates exactly the
nature of the criminal charge against him, and his relations to
the proceeding. As far as mental operations are concerned he is
sane as men are ordinarily. According to the testimony of Dr.
Smith, under whose care he was at Napa, if he had to judge alone
by what he saw of him there he would be obliged to discharge him;
and this testimony is strongly corroborated by all the other
evidence, both professional and nonprofessional, as to his
behavior at the asylum.

  But the most conclusive evidence on this point is the testimony
of Buchanan himself. He was not sworn as a witness, but he
offered himself as an exhibit, and not only by his statement but
by his appearance and bearing, both in the superior court and in
this court, he showed a perfect possession of his faculties and
complete ability to conduct his defense. He gave a connected and
rational account of his whole life. He showed that he understood
his position with respect to the
Page 336
criminal charge pending against him, and that so far as his
conduct is defensible or mitigable he is master of his defense.
He sustained a long and searching cross-examination with perfect
self-possession, and was not betrayed into the slightest
inconsistency of statement. This being so he claims the right,
and the law clearly sustains him in his claim, to a trial upon
the criminal charge. If he is innocent he is entitled to have his
innocence established. If he is guilty, there is nothing in his
present condition to screen him from punishment. If, being found
not guilty and discharged from custody, it is thought he should
be put under restraint as a person dangerous to be at large, the
law affords the means of having that fact adjudicated in a proper
proceeding. So far, there never has been a proceeding in which
his dangerous lunacy has been, or could be, adjudicated. All that
was tried, or could be tried, in the proceeding in the superior
court, was the question whether he was then deprived of his
reason to such an extent that he could not make his defense to
the charge of murder. The finding of the jury and the order of
the court there made are conclusive upon that issue, but if the
prisoner is to be kept under restraint his whole life long as a
dangerous lunatic, some of the methods provided by law for
determining that question must first be resorted to.

  It is ordered that Hugh Buchanan be returned to the custody of
the sheriff of Yuba county, that his trial in the superior court
may be proceeded with.

  Temple, J., Van Dyke, J., and Henshaw, J., concurred.
[fn1] 47 Am. Dec. 216.

  McFARLAND, J., dissenting.

  I dissent. Leaving out of view, for the present, all questions
of law arising in the case, I think that the preponderance of
evidence is to the point that the sanity of the petitioner has
not been "restored." To say nothing of any consideration to be
given to the conclusion of a jury, a superior court, and the
superintendent of the asylum, the evidence introduced in the
present proceeding, in my opinion, preponderates against his
restoration to sanity. The statutory provision in question says
nothing about different kinds of insanity; and certainly a man
not "sane" should not be put on his trial for murder.
Page 337

  GAROUTTE, J., concurring.

  I have no doubt but that under the evidence disclosed by the
record in this case the petitioner is insane within the meaning
of that word as used in the law applicable to our state
hospitals. But conceding that to be his mental condition, it is
not necessarily a bar to his prosecution for the commission of a
crime. The insanity which demands that a person at large should
be confined in an asylum is not the same insanity which bars the
prosecution of that person for the commission of a felony. While
the petitioner is insane within the law applicable to state
hospitals, I think him sane to the extent that he should be tried
upon the charge pending against him in Yuba county.

  I concur in the order.