ON MOTION FOR REHEARING
PER CURIAM.In her motion for new trial appellant strongly urges that we should not consider the constitutional issue moot, and that we should rule on the constitutionality of Section 475.355, RSMo 1969, V.A.M.S., because of its general public interest, and because the right of habeas corpus is not always an adequate remedy.
Prior to trial appellant filed a “Motion to Quash and/or to Dismiss” the competency proceedings because she had been and was then “in confinement in the psychiatric unit of St. John’s Hospital against her will,” that the order for her confinement was issued without notice of hearing to her, that she was not represented at said hearing, and that she was thereby deprived of due process and equal protection of the law all in violation of her rights under the Fifth and Fourteenth Amendment to the Constitution of the United States.” The relief asked was that the court “dismiss the order” of commitment pending a hearing on the issue of competency, that it dismiss “these competency proceedings and release her from confinement.” There was no specific reference or challenge to Section 475.355. This motion was overruled. Other matters and motions were considered in conferences before a trial.
During the opening statement by appellant’s counsel he said this: “And then much to Mrs. Brown’s surprise on the afternoon of February the 12th, no advance warning whatever, the Sheriff of this county acting under Court order and his deputies acting under Court order entered Mrs. Brown’s apartment. She was in bed or in the bedroom area at the time — .” Counsel for respondent then stated that he did not know to “what depth” appellant’s counsel intended to go into this but he “thought this was something covered in the conference before the court earlier, and that [he] did not understand this was a matter which we were permitted to go into details as to what occurred at that time. This is not a matter in issue here.” After some further comments the court said: “Mr. Skelton, go ahead but in accordance with the court’s ruling, do not go into any of the matters we discussed prior to giving the opening statements.”
The trial continued on the issue of appellant’s competency. The fact of her confinement, her treatment, and her conduct while at the hospital was mentioned in the testimony as bearing on the issue of her competency.
The jury verdict was that she was competent, and the trial court granted a new trial for the reason that the Court concluded that Instruction No. 3 was improper.
The appeal of appellant was from the “Order sustaining petitioner’s motion to set aside entered in this action on the 2d day of July 1973.”
The issue of the constitutionality of Section 475.355 has not been preserved in this case for appellate review.
The motion for rehearing or to transfer to the court en banc is overruled.