(dissenting) — The majority grant a new trial upon the sole ground that
the state led the defendant into relying on the availability of the order of commitment in the preparation of his defense. The language of the order, and the final direction therein that the Eastern State Hospital superintendent shall advise the prosecuting attorney when the defendant was able to stand trial, went to the heart of the defendant’s defense of temporary insanity at the time of the commission of the crime with which he was charged.
Defense counsel, having been denied this evidence agreed to in the stipulation which he had relied upon, was prejudiced in the preparation of his defense on the vital issue of the defendant’s temporary insanity at the time of the commission of the crime, and the defendant was thereby denied a fair trial.
In my opinion, the record does not sustain the majority’s conclusion that the defendant was misled or that he was denied a fair trial.
*409The only stipulation which was made by the parties was as follows:
There will be no objection to the introduction as exhibits of certified copies of the Court Order confirming the mental condition of the defendant at the time of his being sent to Eastern State Hospital and at the time of his release from the Hospital. The State will make said document available to the Court at the time of the trial. (Italics mine.)
With reference to the stipulation, the trial court orally instructed the jury during the course of the trial as follows:
Ladies and gentlemen, it has been stipulated by the attorney for the State and the attorney for the defendant, that on May 27th, 1964, the defendant, Jesse Lymon Cole, was transported from the King County Jail to Eastern State Hospital at Medical Lake, and that on December 29th, 1964, the defendant was discharged and returned to the King County Jail for trial.
Dr. Jack J. Klein’s report was not attached to the court’s order of commitment, as the majority opinion indicates. The report of the doctor was attached to the defendant’s ■petition for stay of the criminal proceedings and for commitment to a mental institution. The doctor’s report constituted the supporting evidence for the request for commitment. The stipulation does not provide that letters, reports, and other evidence relating to defendant’s alleged mental illness would be admitted without objection. The stipulation was that court orders only would be admitted without objection.
During the trial, the defendant offered exhibit No. 2, which, he contended, contained the items that the stipulation contemplated. Exhibit No. 2 included the following items: (1). Petition for stay of proceedings and commitment, to which was attached Dr. Klein’s report, (2) order staying proceedings and of commitment, (3) various letters from the prosecuting attorney’s office to Eastern State Hospital and replies thereto, (4) a letter from the institution to the prosecuting attorney and the court advising that defendant Cole was being released, and (5) several letters from Cole *410to the judge of the superior court requesting his discharge from the institution and admitting the theft.
Since the defendant offered exhibit No. 2, with a single certification, on an “all or none” basis, and since exhibit No. 2 contained other items to which the stipulation clearly did not apply, the court properly refused to admit the exhibit.
Thereafter, the defendant offered to separate the items contained in the exhibit, which the court refused to permit. The only item that the defendant was entitled to have admitted, pursuant to the stipulation, was the order of commitment. The court’s oral instruction to the jury satisfied the terms of the stipulation as it related to the order of commitment. Although, under the facts of this case, it may have been error to refuse to admit a certified copy of the court’s order, it did not constitute prejudicial error in the light of the court’s oral instruction.
The letter of release which was included in exhibit No. 2 was signed by Dr. Paul F. Shirey, Section Chief, and by Dr. Harris F. Bunnell, Superintendent of Eastern State Hospital, and contained a statement relative to Cole’s condition at the time of his commitment to the institution and that he had, in their opinion, fully recovered. When the trial judge denied the offer of the letter as being hearsay and a self-serving declaration, he suggested to counsel for the defendant that the doctors could be subpoenaed, indicating that a continuance would be granted for this purpose. Defendant’s counsel chose not to subpoena the witnesses, but to proceed with the trial.
Further, Dr. Jack J. Klein testified that, at the time of his examination of defendant on May 17, 1964, more than two months after the alleged offense was committed, he found Jesse Cole to be suffering from schizophrenic psychosis of a paranoid type; that, at that time, he was too ill mentally to participate in his own defense, and that he believed that at the time thé defendant took the taxicab on March 6, 1964, he was mentally ill and unable to distinguish between right and wrong.
*411Dr. Klein’s testimony before the jury on March 24, 1965, was in far greater detail than his written report of his examination of defendant on May 17, 1964, and fully explained why he had concluded that defendant was temporarily insane. At best, the admission of the written report in evidence would have been only cumulative of his testimony at the trial. Under these facts, it was not prejudicial error to refuse to permit the written report of the witness in evidence as part of exhibit No. 2.
Jesse Lymon Cole was not committed to Eastern State Hospital involuntarily, as provided by RCW 71.02. His attorney petitioned the court for Jesse Cole’s voluntary commitment, as authorized by RCW 72.23.070. The trial court granted the request even though, technically, Cole, being a nonresident, did not qualify for such admission. After several months of treatment, Cole was discharged, as provided by RCW 72.23.140, which states that “whenever in the judgment of the superintendent any patient has been restored his mental health . . . the superintendent shall discharge such patient from the hospital.” In terminating a voluntary commitment, the statute does not provide for a formal order of discharge.
Cole made no objection to his release; in fact, he requested it several times. The letter from the hospital authorities notifying the prosecuting attorney and the court that Cole had recovered and was being discharged was in no sense an order of release. There was no contention that he had not recovered. In fact, the special plea of temporary insanity admitted recovery. When the court instructed the jury that “the defendant was discharged” from the hospital on December 29, 1964, the obligation of the stipulation was fully performed.
The record does not show that defense counsel was in any manner misled or that the defendant failed to receive a fair trial.
Defendant’s taking of the taxicab without permission on March 6, 1964, was admitted. The defense was “Not guilty by reason of defendant’s temporary insanity or mental *412irresponsibility at the time of the alleged commission of the crime charged, to-wit, on or about the 6th day of March, 1964.”
The state’s evidence consisted of the testimony of lay witnesses who had talked with the defendant while he was in the King County jail from March 6, 1964, until May 27, 1964, when he was transferred to Eastern State Hospital at Medical Lake. The state’s witnesses testified that the defendant was not insane but was feigning a mental condition. In addition, the state introduced a written confession signed by Jesse Lymon Cole, dated March 17, 1964, in which he detailed, his taking of the taxicab without permission and, in addition, stated: “I knew when I took the cab I was doing wrong, I did not have permission to take the cab. This is a true and voluntary statement.”
The testimony on behalf of the defendant was principally that of Dr. Jack J. Klein, who testified that he believed the defendant was temporarily insane at the time of the alleged commission of the offense. On cross-examination, however, he admitted that it was possible for a person to feign such a condition and that it could have happened in this case. In addition to the doctor’s testimony, the defendant likewise called lay witnesses.
The jury was instructed on the issue of temporary insanity and the proof required to establish it. No exceptions were taken to any of the instructions, and they became the law of the case. The jury chose to believe the testimony of the state’s witnesses that defendant was sane on the date in question and found him guilty as charged.
For the reasons stated, the judgment and sentence should be affirmed.