(dissenting).
The position of the defendant in this case is based on the fallacious assumption that Mr. Diamenti is held in the state hospital as a criminal and under criminal proceedings. The fact is otherwise. In a separate proceeding, which had no concern whatsoever with his guilt or innocence of crime, he was found to be incompetent and unable to stand trial; and was therefore committed to the state hospital for hospitalization and treatment, likewise unconcerned with his guilt or innocence of crime. He is presumed to be innocent. Insofar as criminality is concerned, his sta*901tus is no different than any other person unconvicted of crime; and his relationship to 'the hospital is just the same as any other patient who is involuntarily committed. He remains so committed unless and until he is sufficiently recovered that the superintendent approves his release. Only when and if this occurs, will any aspect of criminal procedure have application to him.1
It is to be noted that Chapter 48, Title 77, which deals with the commitment and care of the criminal insane, expressly provides for the costs of a preliminary examination into a defendant’s sanity at public expense. But significantly, it does not provide that the State pay the expenses of one who is subsequently committed, unless he is impecunious.
Section 77-48-8 provides:
Expenses of inquiry, how paid. — The expenses of the examination and of the sending of such persons, save convicts in the state prison, to and from the Utah state hospital shall be in the first instance chargeable to the county from which they are sent. But the county may recover them from the estates of any such persons, or from a relative legally bound to care for them, or from the county of which such persons may be resident. Expenses of the examination and of the sending of an insane convict to and from the Utah state hospital must be borne by the state, if he is impecunious.
There is nothing in that section to indicate that the State is _ obliged to pay the costs of maintenance of a person in Mr. Diamenti’s position. But the contrary inference is to be drawn; and that his own estate should pay the costs if it can. Indeed it seems to me to be in accord with the most elementary concept of justice that his estate should bear the cost, rather than to preserve it to heirs and next of kin whose claim therein should most certainly be subordinate to his own needs.
It is true that after a person has been convicted of a crime and committed to the state prison the State bears the cost of his maintenance; and likewise that if one so committed thereafter becomes insane, and is transferred to the state hosital, the cost of his maintenance is borne by the State. But the adjudications on this subject make a distinction between persons who have been convicted, and are therefore charges of the State, and persons who have not been convicted of crime. The Kentucky • Supreme Court pointed out that one in such a position was not a “convict” and the State did not have the responsibility to support him.2 The Connecticut Court made the valid and important observation that the legislature did not intend to confer a discriminatory favor on these patients by exempting them, or their estates, from costs of maintenance, while requiring others to bear them, adding that:
It is only just that public funds be made good for amounts expended on a person’s behalf before his heirs or next of kin receive anything from the estate. (Citing cases.)
. “It is not necessary to extend charity to those who are able to support themselves. Indeed, it would be unreasonable to do so.” . . ,3
A number of jurisdictions have so held and I am not advised nor aware of any to the contrary.4
I can see no merit whatsoever to defendant’s reliance upon Section 64-7-54, U.C. A.1953 which provides:
Construction of act. — Nothing contained in this act shall be construed to *902alter or change the method presently employed for the commitment and care of the criminally insane -as provided in chapter 48 of Title 77, Utah Code Annotated 1953.
It will be noted that that statute refers only to the method of commitment and care of the criminally insane; and that it says nothing whatsoever concerning how the expense of maintenance is to be borne and has no application to that problem.
Section 64 — 7-6, U.C.A.1953 deals with the subject of the costs of maintenance of patients in the state hospital in direct, general and all inclusive language, and makes no exception. It states:
The division shall estimate and determine as nearly as may be the actual expense per annum of keeping and taking care of a patient in the hospital and such amount or portion thereof shall he assessed to and paid by the applicant, patient, spouse, parents, child or children who are of sufficient financial ability to do so, or by the guardian of the patient who has funds of the patient that may be used for such purpose.
and similarly Section 64-7-18 provides that:
Liability of estate of mentally ill person. — The provisions herein made for the support of the mentally ill at public expense shall not release the estate of such persons from liability for their care and treatment, and the division of mental health is authorized and empowered to collect from the estate of such persons any sums paid by the state in their behalf.
In accordance with what is said above concerning the status of Mr. Diamenti as one not convicted of crime, it is my opinion that the State is correct in its contention that by reason of the statutes just quoted he (and his guardianship estate) are responsible for the reasonable expenses of his maintenance in the state hospital. [All emphasis added.]
ELLETT, J., concurs in the views expressed in the dissenting opinion of CROCKETT, J.. U.O.A. Sec. 77-48-1 (1953) states: “No person, while insane shall be tried, adjudged to punishment or punished for a public offense.”
. Briskman v. Central State Hospital, (Ky.), 264 S.W.2d 270.
. State v. Kosiorek, 5 Conn.Cir. 542, 259 A.2d 151, 20 A.L.R.3d 363.
.See similar reasoning by the Illinois court in the cases of In Re Estate of Schneider, 50 Ill.2d 152, 277 N.E.2d 870; and Department of Mental Health v. Pauling, 47 Ill.2d 269, 265 N.E.2d 159; and also in State v. Burnell, 165 Colo. 205, 439 P.2d 38, 33 A.L.B.2d 1257, and Wigington v. State Home and Training School, 486 P.2d 417, (Colo.).