*407The opinion of the court was delivered by.
Graves, J.:This is an application for a writ of habeas corpus. The petitioner is confined in the Sedgwick county jail under an order of commitment issued by the judge of the city court of the city of Wichita, as an examining magistrate. The petitioner claims that he was insane at the time of the preliminary examination, and could not be held to answer to, or defend against, the charge made against him.
The facts, briefly stated, are as follow: The petitioner was duly charged in the city court of the city of Wichita with having, on March 20, 1906, committed the crime of burglary and larceny. He was arrested and arraigned March 26, 1906. At that time the petitioner demanded a preliminary examination, and the case was thereupon continued to March 30, 1906. When the case was called the county attorney obtained leave to file an amended complaint, which was done at once. A new warrant was issued and served by the arrest of the defendant immediately. The petitioner was then and there arraigned, and he again demanded a preliminary examination. By consent the hearing thereof was continued to April 3, 1906, and when the case was then called it was again continued by consent to April 4, 1906. When the case was called on April 4, 1906, the defendant filed a plea in bar, which was overruled, and the preliminary examination proceeded, resulting in an order requiring the petitioner to give bond in the sum of $750 for his appearance at the next term of the district court to answer to the charge of burglary and grand larceny. In default of bail he was committed to jail, where he still remains. Oh March 29,1906, an affidavit was filed in the probate court alleging the insanity of the petitioner. An examination was had April 3, 1906, which resulted in a verdict finding the defendant insane. This verdict was the foundation of the plea in bar. *408It is here urged that the legal effect of this verdict was to oust the examining magistrate of jurisdiction to proceed, and that all action thereafter was void.
It is universally conceded that a defendant cannot be compelled to answer to, or defend against, a criminal charge when by reason of an insane mental condition he is unable to do so in a rational manner. The principal objection urged, in this court is that the court having possession and jurisdiction of the defendant in a criminal proceeding ought to be entrusted with the duty of determining whether he is mentally fit to make proper defense or not, and should not be liable to be interrupted in the performance of its duty by the proceedings of another court.
By chapter 60 of the General Statutes of 1901 full authority is conferred upon the probate court to ex-‘ amine into the mental condition of persons and adjudge whether they are insane or not, and that court having duly adjudged the petitioner to be insane when the preliminary examination was had and when the order of commitment was made, such adjudication, in the absence of any showing or finding to the contrary, must be deemed conclusive upon this question. If the examining magistrate, after the plea in abatement was filed, had upon an examination of his own found and decided that the petitioner had sufficient mental capacity to make a rational answer and defense, a conflict of jurisdiction would have arisen, and a materially different and more difficult question would be presented. Upon the facts before us, however, we feel bound 'to find that the petitioner was insane when the preliminary examination was had, and when the order of commitment was made, and for that reason both are void. The writ is allowed, and the petitioner ordered turned over to the jurisdiction of the probate court of Sedgwick county, there to abide the order and judgment of that court concerning him.
All the Justices concurring. *409(89 Pac. 678.) 1. Criminal Law — Mental Disability of Defendant at the Time of Trial. No person can be compelled to answer for a crime who at the time is incapable of doing so in a rational manner on account of mental disability occurring after the alleged commission of the offense charged against him. 2. —;— Jurisdiction to Determine Defendant’s Mental Fitness for Trial. The court having jurisdiction of a person charged with the commission of a crime has the exclusive right and power to determine the mental fitness of the defendant to make proper answer and defense to .such charge, unless otherwise provided by statute. 3. ■-• Duty to Make Inquiry — Forcing Insane Person to Trial — Void Proceedings. Where upon the trial of a person charged with a crime it is claimed that he is then unable to make answer and defense thereto in a rational manner, because of mental incapacity which has arisen since the alleged commission of the offense, it is the duty of the court where such trial is pending to make inquiry concerning such disability, and, if found to exist, to stop further proceedings in the trial until such disability has been removed. Failure in this respect, whereby an insane person is forced into trial, will render all subsequent proceedings void. 4. - Verdict of Insanity Not Conclusive Proof of Defendant’s Incapacity for Trial. A verdict of insanity found under chapter 99 of the General Statutes of 1901 does not conclusively show that the person therein named is a lunatic or mentally unfit to answer or make defense to a criminal charge against him. 5. Habeas Corpus — Burden of Proving Void Proceedings. A ■writ of habeas corpus can only be issued in behalf of a person who is confined in prison when it is shown that the legal proceedings under which he was committed are void, and the burden is upon the petitioner affirmatively to make such showing. 6. Practice, Supreme Court — Presumption as to Regularity of Proceedings. Where the record fails to show what action was taken by the court with reference to some particular matter in a- proceeding it will be presumed, in the absence of any showing to the 'contrary, that the action of the court was regular and in accordance with the law.