Opinion
No. 5434.
Argued January 5, 1966.
Decided April 7, 1966.
1. Where the New Hampshire Hospital, to which the plaintiff had been committed for a mental examination, strongly recommended that he be examined under the provisions of the sexual psychopath statute (RSA ch. 173) it was held on plaintiff's exceptions to the denial of his petition for a sexual psychopathic examination that the purposes of the statute (RSA 173:13) to protect society, the rights of the plaintiff, and the interest of the State will be served if the question of an inquiry and medical examination (Ib., 2, 3, 4) were reconsidered.
Petition for a writ of mandamus to require the defendant as county attorney to file a petition to have the plaintiff examined as a sexual psychopath under RSA 173:3 II (1). After a hearing the petition was denied on March 26, 1965 and the plaintiff's exception was reserved and transferred by Dunfey, J. Previously the plaintiff, having been indicted for assault with intent to rob, filed a motion on January 21, 1965 to be examined at the New Hampshire Hospital as to his sanity. RSA 135:17. This motion was granted and the plaintiff was examined.
Although the report of the New Hampshire Hospital was that the plaintiff was competent to stand trial, it stated that the plaintiff is "potentially quite sexually dangerous," and recommended that under RSA ch. 173 he be "thoroughly investigated prior to any final disposition by the Court on his present charges." The report in pertinent part reads as follows:
"While the patient during his period of observation has failed to reveal any overt psychotic thought disorder, the evaluation does reveal extremely extensive and at times almost bizarre sexual pathology, which certainly leads to the conclusion that the patient is potentially quite sexually dangerous.
"In the absence of any overt evidence of a psychotic thought disorder, the patient is considered to be completely competent to participate in the legal proceedings against him and advise counsel. However, it is the recommendation of the staff that the patient be studied under the provisions of Chapter 173, R.S.A. 1955, and that this area of his pathology be thoroughly investigated prior to any final disposition by the Court on his present charges."
Also in evidence was the report of Dr. Robey that the plaintiff "must be considered sexually dangerous" and that he "will probably be found to be sexually dangerous" if "sent to this hospital under the provisions of the Sexual Psychopath Law."
Clifford J. Ross (by brief and orally), for the plaintiff.
William Maynard, Attorney General and George S. Pappagianis, Deputy Attorney General (Mr. Pappagianis orally), and Emile R. Bussiere, county attorney, pro se, for the defendant.
The defendant contends that under the discretionary provisions of RSA 173:3 II (1) he, and he alone, has the authority to determine whether the plaintiff shall be examined as a sexual psychopath. The statute has been so construed in the ordinary case. In re Moulton, 96 N.H. 370; In re Craft, 99 N.H. 287. Cf. In re Mason, 101 N.H. 335; RSA 173:4-a. It is clear that the statute does not permit the alleged sexual psychopath to originate such a petition. Swanson, Sexual Psychopath Statutes: Summary and Analysis, 51 J. Crim. L., C. P.S. 215, 216, 228-235 (column 4) (1960). This would mean that if a person was without doubt a sexual psychopath, the "remedial, therapeutic and preventive" objective of the statute would be unavailable to the person most needing it in any case that a county attorney refuses to file a petition under RSA 173:3 II (1). In re Moulton, 96 N.H. 370, 373; 24 A.L.R. 2d 350. Considering that the determination of whether a person is a sexual psychopath is one that "is based primarily on medical evidence" (In re Miller, 98 N.H. 107, 108), it is reasonable to expect that State prosecuting officials will be guided in part by their own State experts. See In re Craft, 99 N.H. 287, 288; RSA 173:4-a.
In the present case no one questions the good faith of the county attorney and his position finds support in general language of the statute. However in no previous case do we find such a strong recommendation that a person be examined under the provisions of RSA ch. 173. While this recommendation is not required to be accepted by a court or a county attorney (In re Farnsworth, 99 N.H. 396), in some cases the interests of justice may require a re-examination of the matter. Rubin, The Law of Criminal Correction 530 (1963). In the present case it appears that the purposes of RSA 173:1 "to protect society," the rights of the plaintiff, and the interest of the State will be served if the question of an inquiry and medical examination (RSA 173:3, 4) is reconsidered. The case is remanded for that purpose.
Remanded.
All concurred.