I concur in the judgment for the reasons set forth herein. *Page 231
The entry, filed July 16, 1965, committing the defendant in the trial court to Lima State Hospital contains two significant phrases, as follows: (1) "it was suggested to the court that the defendant is not now sane," and (2) "pursuant to the provisions of Section 2945.37 of the Revised Code of Ohio."
Section 2945.37, Revised Code, does not authorize the sending of an accused to Lima. Only Section 2945.40, Revised Code, contains such authorization when insanity is set up as a defense. Whether by design or mistake, the order of the court refers to Section 2945.37, Revised Code, and does not recite as the reason for the order that the defendant relies upon insanity as a defense.
Two cases deal with the authority of a court under Section2945.40, Revised Code. In re Henry (1954), 97 Ohio App. 64, decided by the Franklin County Court of Appeals, and In re Fisher (1958), 167 Ohio St. 296, decided by the Supreme Court. Both were actions in habeas corpus. In both the defendants pleaded not guilty by reason of insanity. In Fisher, the court denied relief, holding simply that the court had authority in such a case to send the accused to a local hospital or to Lima. Comment as to what happens thereafter, or as to the significance of what the court "may" do under the elaborate provisions contained in Section 2945.40, Revised Code, is entirely lacking. InHenry, the Court of Appeals suggests that the sole and limited purpose of the commitment is to ascertain whether the accused should be placed on trial, nothing being said as to a determination of sanity at the time of the act charged against the accused.
The trial court elected to proceed under Section 2945.37, Revised Code, it being suggested to the court that the defendant is not now sane. That suggestion may have come from the defense offered, or it "otherwise" came to the notice of the court. In either case, Section 2945.37, Revised Code, requires that the court itself, or by impaneling a jury, "shall proceed to examine into the question of the sanity or insanity of said person."
Two cases provide the rules, Evans v. State (1930), 123 Ohio St. 132, and State v. Smith (1931), 123 Ohio St. 237. Both cases appear to establish the law in Ohio. Evans flatly says *Page 232 that upon notice the trial court shall "forthwith" examine into the question of sanity or insanity. The term "forthwith" suggests that the inquiry must begin without delay, which means that if notice comes before trial, the inquiry must come before trial.
The Smith case approves and follows Evans, but it also points out a most significant turn to the fundamental rule. The trial court in Smith denied the right of the accused to waive a jury and be tried by the court because of the suggestion of possible insanity. The Supreme Court held that the rule in Evans should have been followed and the question of sanity determined. Then a most pointed sentence appears, as follows:
"Having been found sane, he can exercise his waiver of a jury and elect to be tried by the court."
The defense, in Smith, had urged that they would show by qualified men that the defendant had the mental capacity of an eight and one-half year old child, which was the likely basis for the refusal of the trial court to permit a waiver of trial by jury. Our case differs in that the waiver of a jury trial was accepted by the court. In both cases, however, it can be said that the court had some notice that the defendant might not presently be sane. Notice having come to the court, the rule inSmith should apply in the instant case, and then, "having been found sane," the defendant can exercise his waiver of a jury.
Under Section 2945.37, Revised Code, the trial court was required to inquire "forthwith" into the sanity or insanity of the defendant as set forth in Evans, supra.
The modern terminology contained in the "certificate" filed with the court February 21, 1966, may not conform to the traditional language as required by the McNaghten test as set out in paragraph fifteen of the syllabus of State v. Frohner (1948),150 Ohio St. 53 (approved in Krauter v. Maxwell, Warden (1965),3 Ohio St. 2d 142, at page 144), but however far from the customary, it should not be discarded completely. It strongly suggests a mental disturbance present in the defendant sufficient to justify and require the following of the procedure set out in Section 2945.37, Revised Code. Not to have done so was error, and the judgment should be reversed and the cause remanded for further proceedings according to law. *Page 233