OPINION ON REHEARING.
*410The opinion of the court was delivered by
Graves, J.:The petitioner applied to this court to be released from confinement in the Sedgwick county jail by'a writ of habeas corpus. The petitioner was ordered discharged. Afterward a rehearing was granted, and the application is now here for reconsideration.
The facts show that the petitioner was charged with a felony, and arrested March 26, 1906, upon a warrant issued by the city court of the city of Wichita. He was brought before the judge of that court on the same day for a preliminary examination. The hearing was continued to March 30, at which time it was again continued to April 3, when it was postponed to April 4, 1906. On March 29 complaint was made to the probate court of that county that the petitioner was a lunatic, and on April 3 an examination was had upon such complaint, resulting in a verdict finding substantially that he was a fit subject to be sent to a hospital for brain disease or insanity. On April 4 the petitioner appeared before the magistrate and filed a plea in. bar containing a full statement of the proceedings and verdict had in the probate court, and asked that he be discharged for the reason that the court had lost jurisdiction by such proceedings and verdict. The court overruled the plea and proceeded to hold a preliminary examination, which resulted in binding the defendant over to appear in the district court, and upon failure to give the required bond he was committed to jail.
It is conceded that the proceedings of- the examining magistrate, including the order of commitment, are regular and proper, if the action of the probate court did not deprive him of jurisdiction. This makes - it necessary to consider the law under which the probate court acted. The proceedings were had under chapter 99 of the General Statutes of 1901. The purpose of that law is to provide procedure whereby a judicial *411determination may be had of whether or not the person being examined is a proper subject to become a patient in the state hospital for the insane. By its provisions any person may be admitted who by reason of brain sickness has become incapable of caring for his own estate or is a fit subject for care and treatment in a hospital for brain diseases or insanity. The meaning of the word “insane,” as used in that law, is expressly limited, and applies to any degree of mental derangement for which the patient might be admitted to the state hospital for care and treatment. (Gen. Stat. 1901, § 6570.) This includes every phase of a disordered mind, from temporary nervous excitement to acute insanity. It cannot be said, therefore, that a verdict under this statute finding the person examined to be insane necessarily means that he is bereft of all reason or incapable of protecting his own interests in a lawsuit.
Upon the examination of the petitioner in this case he was found by the jury to be suffering from mental strain of five days’ duration, and to be in such a condition as to make him a fit person to be sent to the state hospital. The physician juror added his opinion to the verdict that the patient was suffering from temporary mental strain.' It does not appear whether or not any evidence was offered upon the hearing of the plea in bar, except the proceedings in the probate court. These facts show that the examining magistrate had jurisdiction of the defendant continually from the time he was arrested until the order of commitment was issued, and that, having such jurisdiction) it .was his right and duty to determine every question involved in a preliminary examination under the warrant, including the mental fitness of the defendant to make his defense. It is the law of this country, independent of any statute, that a defendant shall not be compelled to answer to, or defend against, a criminal charge if mentally or physically unable at the time to do so in a rational manner, when such disability has developed after *412the alleged Commission of such crime; but, in the absence of a statuté to the contrary, the duty of determining whether or not such disability exists rests with the court whose duty it is to hear such answer or defense.
When the attention of a court is called to the fact ■that the defendant about to be arraigned before it is unable, because of mental disability, to make proper defense to the accusation against him, it is doubtless the duty of the court to take notice of the suggestion and to make such inquiry concerning it as will fully protect the rights of the accused. Upon such an inquiry the findings of a court in a lunacy proceeding, and any other proper evidence, may be received and considered. The verdict and proceedings presented to the magistrate in this case can only be considered as evidence tending to show the present mental condition of the petitioner. It appears that this evidence was offered for another and different purpose, but the object and manner of its presentation are immaterial. It was sufficient to call the attention of the court to the claim that the defendant was insane and incapable of making proper answer to the charge pending against him. This was a matter of too much gravity to be ignored because of any supposed irregularity in the form of its presentation. It was the duty of the magistrate to take notice of this claim and determine the defendant’s mental condition before proceeding further with the examination.
A writ of habeas corpus can only be allowed in behalf of a person who has been committed to prison when it is made to appear that the proceedings under which the order of commitmént was made are wholly void. If the examining magistrate,. upon the presentation of the plea in bar, considered and determined upon the evidence presented that the petitioner was mentally' capable of making proper answer and defense to the complaint against him, then all the proceedings were regular and in the usual form. It does not appear that this was not done, and in the absence of such a show*413ing we are bound to presump that the court fully protected the rights of'the accused in this respect. The burden.was, upbn the petitioner to make a showing which would entitle him to the writ; having failed to do so, the writ cannot be allowed.
At the former hearing a writ was granted upon the understanding that the inquest of lunacy was had under the provisions of chapter 60 of the General Statutes of 1901, where the word “insane” signifies bereft of reason — a lunatic — and not a mere mental strain or brain sickness, such as might properly receive medical attention; and also because, by a misconstruction of the record, we were led to assume that the examining magistrate ignored the claim that the petitioner was insane and forced him to trial without considering that question.
Upon the rehearing we are convinced that in both these matters we were wrong, and for that reason the decision was erroneous. The writ is now denied.
All the Justices concurring.