84 Wn.2d 834, THE STATE OF WASHINGTON, Appellant, v. ROBERT LEROY FOSTER, Respondent

[No. 43191. En Banc.      Supreme Court      December 26, 1974.]

THE STATE OF WASHINGTON, Appellant, v. ROBERT LEROY
                              FOSTER, Respondent.

[1] Criminal Law - Insanity - Judicial Determination - Due Process -Equal Protection. RCW 10.77.080, which permits a court, on the motion of a criminal defendant for acquittal, to determine the issue of such defendant's mental capacity without first entering a finding as to the commission of the act charged, does not violate the defendant's due process or equal protection rights.

Appeal from a judgment of the Superior Court for King County, No. 66732, David W. Soukup, J., entered February 25, 1974. Affirmed.

Prosecution for murder. The State appeals from a judgment of acquittal and an order of commitment.

Christopher T. Bayley, Prosecuting Attorney, and Daniel J. Berschauer, Deputy, for appellant.

Kenneth E. Kanev, for respondent.

PER CURIAM. -

The respondent was charged by information with the crime of murder in the second degree. Acting through his counsel he entered a special plea of not guilty by reason of mental irresponsibility and filed a motion for judgment of acquittal as provided in Laws of 1973, 1st Ex. Sess., ch. 117, 6, 8, RCW 10.77.060, .080. At the hearing on the motion, two written reports of psychiatrists appointed by the court upon the respondent's request were considered, as well as testimony of a third psychiatrist who was present at the request of the State. All three psychiatrists agreed that the respondent was competent to stand trial but did not know or appreciate the consequences or criminality of his conduct. All three psychiatrists agreed that the respondent was unsafe to be at large.

The court entered findings of fact, conclusions of law and a judgment of acquittal and order of commitment. The appellant filed a writ of certiorari in the Court of Appeals,


[See 21 Am. Jur. 2d, Criminal Law 68.]

 Dec. 1974]          STATE v. FOSTER               835 
84 Wn.2d 834, 529 P.2d 1046

Division One. The case was transferred to this court and treated as an appeal, since a final order had been entered.

As stated by the appellant, the only real controversy at the hearing developed between the court and the appellant over the question whether the court should enter a finding of fact as to the alleged conduct of the respondent. The appellant's position was that the court would have no basis upon which to proceed without a finding of fact that some crime had been committed by the respondent. The court, on the other hand, interpreted section 8 of the act as not requiring such a finding.

[1] That is the sole question urged on this appeal. It is contended that the statute is unconstitutional because it deprives the respondent of due process and equal protection of the laws, in that there is no requirement that the court make a finding that he committed the act charged.

The arguments made in support of this contention are essentially those that were made by the prosecutor in State v. Jones, 84 Wn.2d 823, 529 P.2d 1040 (1974). As we said in that case, the statute does not deprive a defendant of the constitutional right to the procedural safeguards in a jury trial, but merely gives him an alternative procedure which he may utilize if he so desires.

Furthermore, as in State v. Jones, supra, the appellant has offered no authority for the proposition that he as prosecutor may urge before this court the alleged denial of constitutional rights of the defendant in a criminal prosecution.

For the reasons set forth more fully in State v. Jones, supra, the appeal is without merit.

The judgment is affirmed.