39 Wn.2d 403, In the Matter of the Application for a Writ of Habeas Corpus of LAWRENCE KENSTRIP, Petitioner, v. JOHN R. CRANOR, as Superintendent of the State Penitentiary, Respondent

[No. 31834. Department Two.      Supreme Court      September 13, 1951.]

In the Matter of the Application for a Writ of Habeas Corpus
           of LAWRENCE KENSTRIP, Petitioner, v. JOHN R.
               CRANOR, as Superintendent of the State
                     Penitentiary, Respondent.1

[1] INSANE PERSONS - CRIMINALLY INSANE - INCARCERATION. The law does not inflict punishment as such upon the insane, since they are presumed to be incapable of appreciating its significance; it only protects society against the menace of the criminally insane.

[2] SAME. The doing of criminal acts makes an insane person criminally insane, and the safety of society requires that the law distinguish the insane from the criminally insane; hence, the petition of one adjudicated to be insane to be removed from the state penitentiary to a state hospital for the insane will be denied, where it appears that he had escaped from such hospital and had pleaded guilty to a charge of first degree assault, committed while he was at large, and had been sentenced on such plea.

[3] SAME - ADJUDICATION OF INSANITY - PRESUMPTION. Every person is presumed to be sane and competent; but when one is adjudged to be of unsound mind, the presumption arises in favor of the continued existence of the incompetency, and the burden of proving recovery is upon the one alleging it.

[4] CRIMINAL LAW - ARRAIGNMENT AND PLEA - OF PERSON PREVIOUSLY ADJUDGED INSANE - REQUIREMENTS OF DUE PROCESS OF LAW. When one who has been adjudged insane is charged with the commission of a crime, the presumption of the continuance of his insanity requires the appointment of an attorney as next friend and counsel, prior to arraignment, to make that step in criminal procedure accord with due process of law.

[5] CONSTITUTIONAL LAW - DUE PROCESS OF LAW - CRIMINAL PROSECUTIONS - PLEA OF GUILTY. A plea of guilty is due process of law when made with understanding, and not otherwise.

[6] SAME - CRIMINAL LAW - TRIAL - ISSUE OF INSANITY - DUE PROCESS AS REQUIRING TRIAL OF ISSUE BUT ONCE. Upon the trial of a criminal charge, the defense of insanity must be pleaded and proved by the defendant; and a prima facie showing by competent evidence takes insanity to the jury as a separate issue, thereby giving the defendant his day in court upon it and dispensing with the need for an adjudication of the issue prior to trial, because due process requires but one day in court.


1 Reported in 235 P. (2d) 467.

[6] See 142 A. L. R. 961; 14 Am. Jur. 799.

 404    IN RE KENSTRIP v. CRANOR. [39 Wn. (2d)

[7] HABEAS CORPUS - DISPOSITION OF PERSON - ACCEPTANCE OF PLEA OF GUILTY WHILE ADJUDGED INSANE - REMAND. Where, in a habeas corpus proceeding, it appears that the petitioner, who had been previously adjudged insane, was sentenced to the penitentiary upon a plea of guilty of first degree assault entered without the appointment for him of an attorney as next friend and counsel, the supreme court will direct that the petitioner be brought before the trial court, that his plea and sentence be set aside, that an attorney be appointed as his next friend and counsel, and that thereafter he again be arraigned and dealt with according to law.

Application filed in the supreme court July 5, 1951, for a writ of habeas corpus. Denied conditionally; judgment and sentence set aside.

Lawrence Kenstrip, pro se.

The Attorney General, Jennings P. Felix and Robert A. Comfort, Assistants, for respondent.

MALLERY, J. -

This matter is before this court on an order to show cause why the petitioner's prayer for a writ of habeas corpus should not be granted.

It appears, by the return on the show cause order, that petitioner entered a plea of guilty to a charge of first degree assault; that the court was aware of his previous commitment to the insane asylum, from which he had escaped; that the court examined him and determined, in its own mind, that he was sane; that he waived counsel; and that the court accepted his plea of guilty and sentenced him thereon.

This is a case of first instance, and the rule of this opinion is limited to the rights of a person charged with a crime committed after being adjudicated insane by a court of competent jurisdiction.

Petitioner is now asserting his insanity, and seeks to be transferred from the penitentiary to the Western state hospital at Steilacoom. So long as petitioner remains in custody, it might be thought that the particular place of confinement is not too important an issue. We cannot assume, however, that petitioner will always assert his insanity and be content to remain in custody.

 Sept. 1951]     IN RE KENSTRIP v. CRANOR.          405

The procedure and requirements for obtaining a release from the Western state hospital are distinct from those of the penitentiary and/or the insane ward thereof. It is with this in mind that we approach the question here presented.

[1] The law does not inflict punishment as such upon the insane. They are presumed to be incapable of appreciating its significance. It only protects society against the menace of the criminally insane. Indeed, incarceration may continue after sanity is restored, where a relapse into criminal insanity is likely. See State v. Tugas, ante p. 241, 234 P. (2d) 1082.

[2] The doing of criminal acts makes an insane person criminally insane. The safety of society requires that the law distinguish the insane from the criminally insane in its disposition of them.

Accordingly, petitioner's prayer to be removed to Western state hospital is denied.

We next consider his commitment to the penitentiary as a criminal.

We said in In re Burnett, 30 Wn. (2d) 160, 191 P. (2d)283:

[3] "It is the settled law that every person is presumed to be sane and competent; but, when one is adjudged to be of unsound mind and under guardianship, the presumption arises in favor of the continued existence of the incompetency, and, if recovery is claimed to have occurred, the burden of proving it is upon the person making the allegation. [Citing cases.]"

Thus, at the time of arraignment, petitioner was presumed to be insane.

[4, 5] It may be frankly conceded that a mental condition can vary from time to time, and that the presumption of the continuance of such a condition is rebuttable. Nevertheless, an adjudication as to a mental condition would be an idle gesture without such a presumption. We do not mean to say that one adjudged insane gains permanent immunity from punishment for crime. We do mean that, while so adjudicated, the presumption requires the appointment of an attorney as next friend and counsel, prior

 406    IN RE KENSTRIP v. CRANOR. [39 Wn. (2d)

to arraignment, to make that step in criminal procedure accord with due process of law. This is because a plea of guilty is due process of law when made with understanding, and otherwise it is not.

[6] Arraignment and trial are separate steps in the due process of law. Upon the trial of a criminal charge, the defense of insanity must be pleaded and proved by the defendant. A prima facie showing by competent evidence takes insanity to the jury as a separate issue, and the defendant thereby has his day in court upon it. This dispenses with the need for an adjudication of the issue prior to trial, because due process requires but one day in court.

We have denied petitioner's prayer for a transfer from the penitentiary to Western state hospital. Because of the presumption of his insanity, we do not consider the technical defects in his pleadings and grant the full relief to which he is entitled.

[7] We direct that the petitioner be brought before the trial court; that his plea and sentence be set aside; that an attorney be appointed as his next friend and counsel; and that, thereafter, he again be arraigned and dealt with according to law.

SCHWELLENBACH, C. J., GRADY, HAMLEY, and DONWORTH, JJ., concur.