(concurring in.part). I agree with Justice Carr that there was an absence of any competent testimony at the hearing in probate court to prove insanity. Por that reason the patient must be released. I do not find it necessary to concur in some of the other reasons given.
The testimony has been quoted in full. It does not tend to prove insanity.
“Among other questions presented is petitioner’s-contention that at the hearing in the probate court no. competent testimony was produced tending to prpve petitioner’s alleged insanity, and therefore his commitment by the probate court was absolutely void ¿fid his present detention is illegal.
“On review by certiorari of the proceedings in the prohate court we do not pass upon the weight of testimony. Instead the limit of such- review is to determine whether any competent testimony was produced from which it could- reasonably -be found that petitioner was an insane person. * * *
“We- are unable to reach any other conclusion than that the testimony taken did not in any reasonable sense tend to prove insanity, and in the absence of. any proof of insanity the commitment of petitioner was-^hd is‘illegal. * * *
-“If,is not within-the province of this Court in this proceeding to determine whether petitioner was insane at the time Of his commitment Or whether he is now insane. But on the record before us we must and do hold that the proceedings in the probate court were fatally defective and that Harold-H. Haines is' *581entitled to be discharged.” In re Haines, 315 Mich 657.
To the same effect, see In re Gordon, 301 Mich 224; In re Aslanian, 318 Mich 55, 58.
I do not agree that there was no showing made that the condition of the patient was snch as to render her removal from Eloise hospital improper and unsafe for the purpose of appearing at the hearing. Such a showing was made, in accordance with the statute, where it provides that:
“Such alleged mentally diseased person shall have the right to be present at such hearing, unless it shall be made to appear to. the court, either by the certificate of the medical superintendent in charge of such hospital, home or retreat to which he may háve been temporarily admitted, or .by the certificate of 2 reputable physicians, that his condition is such as to render his removal for that purpose,'or his appearing at such hearing improper and unsafe.” CL 1929, § 6888, as last amended by PA 1943, No 250 (Stat Ann 1943 Cum Supp § 14.811).*
The patient had been committed to Eloise hospital by order of the court and was confined there-at the time of the hearing. The medical superintendent of the hospital certified to the court as follows:
“I hereby certify that it is improper and unsafe for the above mentioned patient to appear in your court at the time of the hearing regarding the alleged mental disease.”
Justice Carr relies on In re Harold H. Roberts, 310 Mich 560, where there was a complete absence of any such showing, either by the medical superintendent or by any physicians, or otherwise. In that case the attorney general filed a memorandum with the court confessing error in the proceedings because *582of lack of suck compliance witk tke statute, and on that ground alone tkis Court ordered release of the patient.
See, also, In re Aslanian, supra, pp 58, 59.
It is not necessary to discuss additional questions raised as to why tke patient should or should not be entitled to release. Either they have been considered by us in previous opinions or are not likely to arise again if another proceeding should be instituted to determine whether the patient is now insane.
There being an absence here of any competent testimony to prove insanity, the statute has not been complied witk in tkat regard. For 'that reason I concur in tke entry of an order disckarging tke patient from custody.
Butzel, J., concurred with Boyles, J. The late Chief Justice North did not sit.Subsequent amendments have no bearing.