1. One who is acquitted of murder on the sole ground of insanity and who has been committed to the Lima State Hospital for the insane, is not deprived from thereafter seeking a writ of habeas corpus for the purpose of showing that he is sane and therefore unlawfully restrained of his liberty.
2. Section 1998, General Code (98 O. L., 240) authorizing the superintendent of such institution to discharge such inmate who “in his judgment” is recovered, etc., does not preclude the inmate from applying to a court of competent jurisdiction for a determination of his sanity, — to a tribunal which is empowered to use its processes and to hear sworn testimony upon that issue. ' •
3. The verdict of acquittal on the ground of insanity is prima facie evidence of the inmate’s insanity, and the presumption of insanity thereafter continues; and in order to obtain his release from such hospital, by writ of habeas corpus, the inmate has the burden of removing that presumption and of establishing with reasonable certainty his_ sanity.
4. The fact that the Probate Court, pursuant to Section 13612, General Code, had previously ordered the commitment of the inmate to such hospital and error had been prosecuted from such order, constitutes no bar to a subsequent application for a writ of habeas, corpus, where the sanity or insanity of the inmate at the later period may he determined by the court.
(Kinkade, Robinson and Matthias, JJ., concur. Marshall, CJ., Day and Allen, JJ., dissent.)