I am unable to find the slightest justification in the record of this case for holding that appellant was examined and committed for insanity, under secs. 64-201 to 64-210,I.C.A. It is written in glaring terms all over the record of the original proceedings, that appellant was held on the charge ofinebriety. The original complaint made before a justice of the peace of Ada county was on a printed form and charged
"that the said Mary Hanson has for a long period been subject to the intemperate use of intoxicating liquors;"
and then interlined on the typewriter are the following words: "and other narcotics, to-wit, Veronol and such drugs"; and then follows the printed form "that she has lost the power of self-control and is subject to dipsomania and inebriety to such an extent that _____ is so far disordered in mind as to endanger health, persons and property, to-wit: her own health and property, and the property, health and persons of"; and this is followed by the typed words "her family and other persons."
Upon that complaint the justice of the peace issued to the police officer, who made the affidavit, his warrant of arrest, reading in part as follows:
"A complaint, upon oath, having been this day laid before me by Andy Robinson stating that Mary Hanson was so addicted tothe use of intoxicating liquors and drugs, to-wit Veronol andsuch drugs, that she has lost the power of self-control andthat site resides in Boise, Ada County, Idaho, thereof, you are therefore commanded to forthwith arrest the above named MaryHanson and bring her forthwith, before the *Page 156 Judge of the District Court of the Third Judicial District in said County of Ada."
and italicized part of which was typewritten in the blank space left for such purpose. Appellant was thereupon arrested and taken before the district judge, Honorable Charles F. Koelsch, who caused subpoenas to be served on Dr. T.N. Braxtan and Mabel Keyser, to appear before him and testify concerning appellant's condition. After hearing the testimony and making an examination, Dr. Braxtan certified, among other things, "that at the request, and in the presence, of C.F. Koelsch, Judge of the District Court of Ada County, he has heard the testimony of the witnesses and personally examined the said Mary Hansen in reference to the charge of insanity, and does find that she is"; this is followed by the word "insane" which is crossed out and instead thereof the word "inebriet" is written with the typewriter.
Farther along in the certificate, following the words, "Patient's habits?" were typewritten the words "use alcohol." Farther on, in answer to the words "Give details of previous attacks," written with pen and ink, are the words, "Very frequently takes Alcohol and Varinal to excess." Farther along, among the questions to be answered, the printed word "insanity" is crossed out. In the very last line of the examining physician's certificate, following the printed words "Remarks," and evidently written with pen by Dr. Braxtan, are these words: "Alcohol and Varinal adict."
These things all appear from the original order of commitment and physician's certificate, as set out in footnote 1 to Mr. Justice Givens' opinion, wherein he italicizes the words that have been inserted with pen or by typewriter; and the words crossed out are also so indicated. It should also be remembered that this "Order of Commitment," "Financial Statement," and "Insane Commitment — Certificate of Examining Physicians," are all on three printed pages of one folded sheet and, as indicated by the title to the physician's certificate, were intended for use on examination and commitment of an insane person and were never prepared nor intended for use in commitment of inebriates and persons "so far addicted to the intemperate use of narcotics or stimulants as to have lost the power of self control, or is subject to dipsomania *Page 157 or inebriety," as provided for by sec. 64-216. It is apparent all over the face of this document that it was intended to so correct and interline it as to make it applicable to a case where the commitment was being made for inebriacy, under sec. 64-216,I.C.A.
The very first recital in the district judge's order is as follows: "In the Matter of the examination and commitment of Mary Hanson for Inebriety," the words "an insane person," being stricken out. The order then proceeds: "WHEREAS, Mary Hanson, having this day been brought before me, judge of the District Court . . . . on the charge of"; here the word "insanity" is stricken out and "Inebriety" is written in. "J.R. Good having been duly appointed attorney to represent the accused;" etc. The words quoted in the majority opinion are in the printedform and are included in the following clause: "and being myself satisfied that she is"; here the words "insane and" are stricken out; "so far disordered in mind as to injure health, person, or property."
Here this woman was committed under a statute (sec. 64-216) which provides that the maximum term of detention is two years; and notwithstanding these facts and this statute, she was detained 6 1/2 years and would probably still be held, so far as anything appears to the contrary, had she not sued out a writ of habeas corpus. The rule of law governing this case is clearly and correctly stated by this court in Peterson v.Merritt, 25 Idaho 324, 332, 137 P. 526. An officer is protected in acting upon the mandates of a writ, fair and regular on its face; but he must keep within the terms of the mandate. He acts outside the mandates of the writ at his peril.
I cannot understand how it has been possible for anyone, layman or physician, to read this "Order of Commitment" and the attached certificate of the doctor, who made the examination and diagnosis, to which the judge's "Order of Commitment" is attached and refers, without being at once satisfied and convinced that the commitment was for "inebriety." It appears in plain terms all through the examination certificate of Dr. Braxtan, as well as from the commitment by Judge Koelseh, that appellant was being tried and committed for "inebriety," — the excessive use of "alcohol varinal." *Page 158
In order that anyone, who may be interested in reading this case and the court's holding, may see it as it is, I am including a photostat copy of Judge Koelseh's "Order of Commitment" which is as follows:
[EDITORS' NOTE: FORM IS ELECTRONICALLY NON-TRANSFERRABLE.]
The printed lines on the form used by the judge (the common form used in insanity cases), stating that the person examined is "so far disordered in mind as to be dangerous to *Page 159 health, person, or property," quoted by Mr. Justice Givens, is no more applicable to an insanity commitment than it is to an inebriacy or dipsomania case. In cases of inebriavy or drunkenness, or dipsomania, where the patient has reached the stage that he must be confined for treatment or safety, and the law takes hold of him, he is certainly "disordered in mind" and "dangerous" to his own "health" or to "persons or property." The very language of the statute (see. 64-216) contemplates just such a condition, wherein it says:
"Whenever it appears by affidavit to the satisfaction of a magistrate of the county, that any person within the countyis so far addicted to the intemperate use of narcotics orstimulants as to have lost the power of self-control, or issubject to dipsomania or inebriety, he must issue and deliver to some peace officer for service a warrant directing that such person be arrested and taken before the district court of the county, or the judge thereof, for a hearing and examination on such charge." (Italics supplied.)
Dr. Hammond, in considering the subject of Inebriety (1 Legal Medicine and Toxicology, 2d ed., p. 476) says:
"From a study of these different forms of inebriety the conclusion is obvious that the responsibility of the inebriate varies somewhat according to the class in which he belongs, and that the responsibility of different individuals in the same class depends to a great extent upon the degree of their inebriety. The inebriate is brought into relations with the laweither because he has injured others or is about to do so, orbecause he needs protection or redress himself." (See, also, 4 Nelson's Loose Leaf Ency., p. 65B.)
The majority opinion contains the following very remarkable statement: "Appellant's complaint does not charge she was not insane when committed or that she was later cured but not immediately released and appellant does not base her cause of action on respondent's lack of skill or negligence in treating her; her sole contention being that the commitment being for inebriacy only, did not justify her detention from April 29, 1933 until October 30, 1937, . . . ." I have always understood that the law assumes every person sane until the contrary is shown. (22 Corpus Juris, sec. 81, p. 146; 20 Am. Jur., sec. 215, p. 213.) Insanity was purely a matter *Page 160 of defense in the present action, unless we assume in the outset, as the majority opinion seems to do, that the defense are correct in their contention and the commitment was forinsanity.
Finally, it is suggested by the majority opinion, as one of the "indicia" of the case, that, "the commitment affirmatively shows appellant was represented by an attorney, as required by 64-202 and not by 64-216I.C.A." She was represented by counsel and the Inebriacy Statute (see. 64-216) evidently intended, and meant, that an accused person should also be so represented, else why does the statute require the district judge to "inform him of the charge against him, and inform him of his rights to make a defense to such charge and produce any witnesses in relation thereto." It further provides that the judge shall fix the "time and place for the hearing and examination as will give a reasonable opportunity for the production and examination of witnesses."
Now I wonder what use the legislature thought it would be to an unfortunate woman charged with being "so addicted to the use of intoxicating liquor and drugs . . . . that she has lost the power of self control," to allow her "reasonable opportunity" to produce her witnesses and present her side of the case if she is not to have an attorney. It is true that in inebriacy cases the statute does not enjoin the duty upon the judge ofappointing an attorney to represent the accused for the evident reason that an inebriate may be mentally and financially competent to employ his own counsel, whereas an insane person is not presumed, in any case, to be capable of so doing. But under the general law, there would be as much necessity for the court appointing an attorney to represent an indigent inebriate as there would be for appointing an attorney to represent anindigent highwayman or thief on trial for his liberty; and the latter duty is specially enjoined by statute. (Sec. 19-1412, I. C. A.) Certainly the liberty of the citizen is as sacred and dear to him, under the constitution and statutes, when charged with inebriacy, dipsomania, or the drug habit, as when charged with chicken stealing, burglary, or assault with a deadly weapon.
Consequently, I am unable to consider the fact that appellant was represented by counsel as any "indicia" whatever *Page 161 that she was committed as insane but merely that she was represented by counsel, to which she was clearly entitled, whether charged with insanity, inebriacy, or murder.
It seems to me that a mere cursory glance at the Order of Commitment, as well as a careful study of the Order, leads to the inevitable conclusion that appellant was committed for inebriacy.
The judgment should be reversed.
Budge, J., concurs in this dissent.
Petition for rehearing denied.