Briefly, the facts which give rise to the issues herein presented are that the petitioner, James Garland Flint, was charged by preliminary Information with the Crime of Murder in the County Court of Payne County and before preliminary hearing could be held thereon, was committed to Eastern State Mental Hospital for a period not to exceed 90 days. After examining Mr. Flint, the officials of said mental institution, in a letter addressed to the committing court, expressed the opinion that he (Flint) was unable to assist in the preparation of his defense by reason of his present mental illness. Mr. Flint was returned to the custody of the Sheriff of Payne County. The Honorable Max Sater, County Judge of Payne County set a preliminary hearing for Flint in County Court Case No. 10137.
Subsequently, the Honorable District Judge Robert L. Hert on application of the County Attorney ordered a jury panel to be called to inquire into the present sanity of the accused. This Court stayed proceedings in both County and District Courts pending a determination of the issues herein raised.
Petitioner, James Garland Flint, has filed an application seeking to prohibit the Honorable Max Sater, County Judge, from conducting a preliminary hearing in County Court Case No. 10137 and also seeks to prohibit the Honorable District Judge Robert L. Hert from proceeding with a jury trial on the issue of present sanity in the District Court Case No. 3006.
Petitioner further seeks an order of this Court directing that Judge Hert enter an order adjudging petitioner presently insane and committing him to Eastern State Mental Hospital until he has regained sufficient sanity to assist in his defense.
The applications above referred to are filed in the Court of Criminal Appeals, Docket Nos. A-13,241 and A-13,245, and are consolidated in this opinion.
The statute under which the District Court of Payne County entered the order committing petitioner to Eastern State Mental Hospital for a 90 day observation period is Title 43A, § 60, which provides:
“If any person is.held in confinement because of criminal charges or if he *932has criminal charges pending or likely to be filed against him, or if he has been taken into custody because of a criminal act or acts, and the question arises as to his sanity or state of mental health, such individual may be ordered by a court of record having jurisdiction of the criminal proceedings into a State hospital within the Department for observation for a period not to exceed ninety (90) days.”
We are of the opinion that the decision rendered by this court in Re Severins, Okl.Cr., 330 P.2d 752, is determinative of the issues herein raised.
In the body of the opinion, this court stated:
“At the completion of the observation period, the preliminary hearing should proceed, and if probable cause is shown and accused is bound over to the district court for trial and the question of the present sanity of the accused is still present, prior to a trial a jury would have to be impanelled to decide such question, as provided by 22 OS 1951 §§ 1162-1169.”
It was argued by counsel for petitioner that the district court has power and authority to commit the petitioner to a state mental hospital and that the opinion of the examining physicians of Eastern State Hospital is determinative of the question of the present sanity of this petitioner.
No authority has been cited by the petitioner in support of these contentions, and although we have carefully searched the statutes of this state, we are unable to find any authority for the district court to commit an accused to a state mental institution without first having called a jury to determine the issue.
The district court is without authority to call a jury in the instant cause until such time as the petitioner has been bound over to the district court for trial. We are of the opinion that, at this time, the District Court of Payne County is without authority to conduct a jury trial on the issue of the present sanity of the accused and that the jury impanelled for that purpose should be, and the same is hereby, ordered dismissed.
We are of the further opinion that the petitioner’s application for a Writ of Mandamus directing the district court to enter an order adjudging the petitioner presently insane and committing him to a state mental hospital should be, and the same is, hereby denied.
We are of the further opinion that the petitioner’s application for an order prohibiting the Honorable Max E. Sater, county judge in and for Payne County, should be, and the same is, hereby denied.
It has been argued that the obvious intent of the legislature in the enactment of Title 43A, § 60 was to prevent a person presently insane from being proceeded ¿gainst in a criminal action. It has been further suggested that if a preliminary hearing can be conducted when the defendant is mentally ill and the accused bound over to district court and prior to a trial on the merits, committed to a mental institution under the provisions of Title 22, §§ 1162-1169, that the evidence taken in preliminary hearing could, under certain circumstances (death or absent of witnesses) be admissible against accused when he regains sanity and is tried. It is further argued that under such circumstances, the preliminary proceeding would be a nullity and the introduction of such testimony would deny the accused his right to be confronted by the witnesses appearing against him.
This argument has great merit and, perhaps, the legislature will enact statutes authorizing a trial on the question of present sanity and providing for commitment of an accused prior to preliminary hearing. But until such time as the legislature has acted, it is suggested that the defendant’s rights can be protected by granting him a jury trial as provided under the provisions of Title 22 O.S. §§ 1162-1169.
If he be found presently sane, the case should proceed to trial on its merits. If, on the other hand, it is determined by the jury that he is presently insane, he should be *933committed to a State Mental Institution until he is capable of standing trial.
When he is returned for trial, the prior preliminary hearing being a nullity because of defendant’s insanity, it becomes the trial court’s mandatory duty to order a new preliminary hearing. The defendant could, of course, waive his right to preliminary hearing and proceed to trial.
For the reasons above set forth, the writs prayed for are denied.
BRETT, J., concurs in result. NIX, P. J., dissents.