Opinion
No. 70-488
Decided March 24, 1971.
Habeas corpus — Petitioner not in custody of respondent — Dismissal — Moot case — Release from Lima State Hospital sought.
APPEAL from the Court of Appeals for Montgomery County.
This is an action in habeas corpus which originated in the Court of Appeals.
On April 22, 1968, appellant was indicted for second degree murder. On may 16, 1968, appellant was determined to be insane by the Lima State Hospital and the Montgomery County Court of Common Pleas.
On March 2, 1970, the Lima State Hospital and the court found appellant to be restored to reason, and he was tried to the court on the indictment for second degree murder.
Appellant was found not guilty by reason of insanity and, pursuant to R.C. 2945.39, the court ordered that he be committed to the Lima State Hospital. The Sheriff of Montgomery County was ordered to convey him to such institution.
Before the sheriff could execute the order of conveyance, petitioner filed a petition for habeas corpus in the Court of Appeals for Montgomery County. The Court of Appeals issued a preliminary writ. Upon agreement of counsel, the Court of Appeals appointed a psychiatrist, as a referee to examine appellant. The referee reported that appellant was sane and restored to reason, but that a definite answer as to whether appellant's release would be dangerous was not possible. Reasoning that the court would not be justified in granting an absolute release until professional assurances were furnished, the Court of Appeals denied the petition for a writ of habeas corpus.
The cause is before us upon an appeal as of right.
Messrs. Withrow Ratchford and Mr. Jack W. Hutton, for appellant.
Mr. Lee G. Falke, prosecuting attorney, and Mr. Leonard P. Zdara, for appellee.
Appellant here contends that a court-appointed psychiatrist has determined that he is sane, and that his commitment to the Lima State Hospital by the Montgomery County Court of Common Pleas is, therefore, unlawful.
It has been held that one who pleads "not guilty by reason of insanity," and who has been committed to the Lima State Hospital, is not deprived from thereafter seeking a writ of habeas corpus for the purpose of showing that he is sane and, therefore, unlawfully restrained of his liberty. In re Remus (1928), 119 Ohio St. 166, 162 N.E. 740. The General Assembly has expressly provided (R.C. 2945.39) that the constitutional privilege to the writ of habeas corpus exists in addition to the statutory procedure for obtaining release from the Lima State Hospital set forth in that section.
Turning to the instant record, we find that appellant was in the custody of the respondent, the Sheriff of Montgomery County, at the time the petition seeking a writ of habeas corpus was filed in the Court of Appeals for that county. However, it was conceded by appellant's counsel during oral argument before this court that appellant presently is confined in the Lima State Hospital and, therefore, has been discharged from the temporary custody of the Sheriff of Montgomery County.
Since the appellant has been discharged from the custody of respondent, the questions presented by this appeal are now moot. Sakacsi v. McGettrick (1967), 9 Ohio St.2d 156, 224 N.E.2d 527; Smith v. Sacks (1961), 172 Ohio St. 59, 172 N.E.2d 915; State, ex rel. Shaw, v. Switzer (1952), 158 Ohio St. 329, 109 N.E.2d 8. See Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21.
Appeal dismissed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.