Now the error of this court in holding (In re Phyle (1947), 30 Cal.2d 838 [186 P.2d 134]) that habeas corpus was not available as against the ruling of an administrative agent to test the sanity of a person under sentence of death, starts to multiply. Its progeny *164is a new trial court procedure (and, originating in a trial court, it carries a right of appeal) whereby the convicted one may invoke mandamus, repeatedly and apparently as often as occasion may arise, to try to compel the warden to exercise discretion to require the district attorney to file proceedings in the trial court, impanel a jury and try anew the question of the defendant’s sanity. All this, notwithstanding that the warden has already once so acted, that a trial has been had, a judgment rendered and that the sole question properly to be raised, within the requirements of due process, is whether the original judgment of insanity still is operative. It is still operative if the defendant remains insane and gives him all the protection which a new trial and judgment could give him; but if defendant has recovered his sanity the judgment by its own terms has expired and defendant should be executed. As is hereinafter shown habeas corpus is traditionally, and by earlier decisions of this court, the sole and exclusive remedy to settle the single issue.
In the opinion prepared by Justice Edmonds it is said that “Where a prisoner seeks to invoke the statutory remedy provided by section 3701 of the Penal Code, mandate is the only available proceeding. Thus, upon the assumption that any judicial hearing as to sanity must be afforded one under sentence of death, there are two remedies, each directed to an exclusive form of relief. To acquire a simple judicial determination of the fact of sanity, habeas corpus is the proper and exclusive remedy. But to obtain a jury trial of that issue, as provided by section 3701 of the Penal Code, mandate is the only available and adequate remedy.” And that proposition is said to apply here even though defendant has already had the trial as provided for by section 3701. Any one judgment in such a case is said to have no continuing effect because it relates only to sanity as of its date and to be immaterial in respect to the claim as of a later date; hence, regardless of the outcome of a first sanity trial under sections 3701 et sequitur the defendant as of a later date may invoke mandamus seeking to compel another trial on the same issue and to the same end. Such a procedure bids fair to be a most useful one for those who would seek unwarranted delays in the execution of death sentences.
Because of the deplorably confused state in which several important branches of the law (habeas corpus, mandamus, coram nobis, due process, suspension of the death penalty, con*165flict of laws, trial for insanity of a condemned person, comparative powers of administrative agents and courts, etc.) are left by the present opinion (or lack of one in which a majority of the court agree), read in conjunction with the majority opinion of this court in In re Phyle (1947), supra, 30 Cal.2d 838, and the opinions of the justices of the United States Supreme Court in Phyle v. Duffy (1948), 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494], one who would seek to follow the vagaries of the law through the inconsistencies of this case, with the object of rescuing as much as possible of its integrity, should both concur and dissent.
I should concur in the judgment denying relief in this proceeding because: 1. mandamus is not a proper remedy; 2. the relief sought by mandamus has already been accorded the petitioner and a valid judgment determining the very issues sought to be litigated is presently outstanding;1 3. there is available (and at all times concerned there has been) the plain, direct and simple remedy of habeas corpus, expressly provided by statute to try the only issues which can properly now be raised (Pen. Code, §§ 1473, 1487(5), 1493). But I should dissent from the judgment because, if the novel suggestion that habeas corpus is not the proper or the exclusive remedy to try the legality of one’s imprisonment after sentence (particularly the identity of his jailer, Pen. Code, § 1487(5)) is to be followed, as the opinion of Justice Edmonds suggests, and if mandamus is to be substituted for habeas corpus or added as an additional remedy (not to directly determine the legality of the place of detention or identity of the custodian but to compel a third person administrator to exercise discretion to initiate proceedings to cause a district attorney to start proceedings in a trial court to try anew before a jury as of a new date the question of petitioner’s sanity), then it must follow, if we accord any weight at all to the earlier verdict of the jury and outstanding judgment of the superior court, that as a matter of law there is shown ‘ ‘ good reason to believe that a defendant, under judgment of death, has become *166insane” (Pen. Code, § 3701) and the duty of the warden would appear to require the reinitiation of the roundabout and cumbersome procedures above mentioned.
A brief statement of the facts is here pertinent. On February 20, 1946, William Jerome Phyle was convicted of the crime of murder of the first degree and sentenced to death. The judgment of conviction was affirmed (People v. Phyle (1946), 28 Cal.2d 671 [171 P.2d 428]). In December of that year, in a proceeding duly instituted by the district attorney at the suggestion of the warden of San Quentin Prison under the provisions of section 3701 of the Penal Code, a jury found that Phyle was insane. Our statute prohibits execution of the insane (Pen. Code, § 1367). The judgment of the superior court, following the verdict, determined that Phyle was then insane and adjudged that he be confined in the state hospital for the insane “until his reason be restored.” Twenty-five days later (18 days after Phyle’s admission to the hospital) the superintendent of the hospital, without trial or hearing, without judicial determination that Phyle had become sane, and without any determination upon any prescribed or ascertainable standard, certified to the governor that Phyle had recovered his sanity and he was returned to the warden of the prison for execution. That is to say, the place of Phyle’s confinement and the identity of his jailer were changed; he was transferred from the custody of the superintendent of the state hospital for the criminal insane to the custody of the warden of a state prison. If, in truth, Phyle continued to be insane the judgment of the court required that he be kept in the hospital; as long as he remained insane the judgment remained effective and his imprisonment in any institution other than the state hospital or by any custodian other than the hospital superintendent would be unlawful. Phyle contended that the transfer was unlawful, that his detention by the warden was unlawful, and that the superintendent of the hospital remained his lawful custodian. He sought relief by application for the writ of habeas corpus, alleging the facts as to the jury trial, the rendition of judgment and his commitment to the hospital. Phyle alleged, and it was not denied by the State, that in truth “said Phyle was, and still is, insane.’’ Nevertheless, the majority of this court held that the ruling of the sole administrative agent (the hospital superintendent), even though arrived at by no fixed or ascertainable standard, was supreme; that his ruling, regardless of lack of standard, *167completely and irrevocably terminated the judgment of the court; that Phyle must be executed on the agent’s ruling; and that neither this court nor any other had jurisdiction to review the administrative order. (In re Phyle (1947), supra, 30 Cal.2d 838.) Thereafter the United States Supreme Court issued certiorari but on the hearing accepted a statement of the Attorney General of California to the effect that this court did not rule that Phyle was entitled to no judicial review of the administrative agent’s order, but held only that habeas corpus was the wrong remedy and that a procedure “labeled mandamus” was the proper, and an available, remedy (whether to review the agent’s order or to again try, as of a new date, the issue of Phyle’s sanity, is not entirely clear) and upon that novel theory dismissed the certiorari proceeding. (Phyle v. Duffy (1948), supra, 334 U.S. 431.)
That the attorney general was mistaken in his representation, at least insofar as the intention of this court is concerned, is known to all of us and is apparent from the language used by the majority. They declared that (In re Phyle (1947), supra, 30 Cal.2d 838, 840-841) “The only question presented is whether a person who has been adjudged insane after conviction, sentence, and delivery to a warden of a state prison for execution, has the right to a judicial determination of the question of his restoration to sanity. . . . [pp. 842-843] There is no authority . . . for the proposition that defendant has a right to habeas corpus or other judicial proceeding to determine the question of his sanity after his release from the state hospital. In fact, section 3700 of the Penal Code expressly prohibits2 such a proceeding. ” (Italics added.) Making their position still more clear, they continued “ [p. 845] Where there is a statute that declares that the superintendent of the state hospital where the prisoner is confined may *168declare the prisoner’s sanity restored,3 a person awaiting execution has no right to a [p. 846] judicial determination of his restoration to sanity . . . By adopting section 3700 of the Penal Code prohibiting the courts from suspending the execution of judgment of death except on appeal, the Legislature has provided in effect that the courts of this state are without power [regardless of constitutional provisions], except as provided by statute, to determine the sanity of a person who has been sentenced to be executed for a capital offense and is in the custody of the warden . . . for the purpose of execution . . . Thus, regardless of what the common law powers of a court may be, when the procedure for the determination of the question of sanity of a person who has been sentenced to death is covered by statute, a court has no inherent power to determine that question and such a person has no right to a judicial determination of the question unless the statutes so provide . . . [p. 847] The question remains whether the statutory procedure [as interpreted by the majority] for determining the question of restoration to sanity is constitutional. Petitioner contends that defendant has a right to an adjudication of the question of his sanity, protected by the due process clauses of the Constitution of the United States and the Constitution of California. There is no such right under either Constitution [italics added] . . .
“ [p. 849] The petitioner contends also that the separation of powers provision of section 1 of article III of the California Constitution is violated by leaving the final determination of a prisoner’s sanity to administrative officers ... [p. 850] Even if it be assumed that the power of the superintendent of the state hospital, to whom defendant was delivered, to determine whether defendant has recovered his reason is a judicial power, the foregoing provisions of the California Constitution authorize the delegation of this power. Under the statutes the prisoner is delivered to the custody of the superintendent as a person convicted of a felony, and thereafter, so far as the superintendent’s authority over such a person is concerned the superintendent exercises not only the authority of an officer entrusted with the superintendence of an *169institution for convicted felons but the duties and functions-prescribed in Penal Code, section 3704.
“It follows that unless the warden of the prison in which defendant is incarcerated believes that defendant is now insane, no court of this state has jurisdiction to determine the question of his sanity.”
That the above quoted views and’ holdings of this court are irreconcilably inconsistent with the indicated views of the Supreme Court of the United States is apparent from a reading of Phyle v. Duffy (1948), supra, 334 U.S. 431 [68 S.Ct. 1131, 92 L.Ed. 1494], Such quoted views are likewise, as pointed out in my dissent in In re Phyle (1947), supra, 30 Cal.2d 838, 854, et seq., squarely contrary to the earlier holdings of this court in Gardner v. Jones (1899), 126 Cal. 614, 615-616 [59 P. 126], and In re Buchanan (1900), 129 Cal. 330, 332-333 [61 P. 1120, 50 L.R.A. 378], with which earlier cases the views of the United States Supreme Court appear to be in full accord.
The irreconcilable difference between the United States Supreme Court and our majority is pointed up forcefully by Mr. Justice Frankfurter, concurring in Phyle v. Duffy, supra (pp. 444-445 of 334 U.S.): “The court now finds that all that the California Supreme Court did was to hold that as a matter of California procedure [italics added] the petitioner’s claim could not be passed on by the direct remedy of habeas corpus, but that there is available a special local remedy, labeled mandamus, whereby the petitioner can judicially test his present sanity . . . Whatever may be the elegancies of procedure by which the matter is to be determined, our decision declining to consider the grave constitutional issues which we thought we had before us, is contingent upon a determination by the Supreme Court of California that the law of that state is what our decision presupposes it to be [italics added], namely, that California by a remedy which California chooses to call mandamus enables the present petitioner to secure a judicial determination of his present sanity. This means, of course, not the very restricted scope of relief which is normally associated with the traditional remedy of mandamus. [Italics added.] It presupposes that California affords petitioner the means of challenging in a substantial way the ex parte finding of the Superintendent of the State Hospital . . . and enables him to secure judicial determination of the claims he has made in his petition for habeas corpus, which, so the Court now *170holds, is not the proper way to proceed.” The majority of this court now cite and rely on the above quoted proposition yet every member of this court knows that no such idea was considered or intended by this court in In re Phyle. This court did not deny habeas corpus on the ground that simply “as a matter of California procedure” mandamus was the proper —and exclusively the proper—remedy; quite differently, the majority denied habeas corpus solely and exclusively because they intended to hold that the power of the administrative agent was supreme and that petitioner, having been ruled on by the administrative agent, had no right to any judicial review. The majority opinion, as already noted, expressly declares (pp. 840-841 of 30 Cal.2d), “The only question presented is whether a person who has been adjudged insane after conviction . . . has the right to a judicial determination of the question of his restoration to sanity.” Since the question stated was the only question which the majority considered to be properly before them it is not surprising that all the discussion in the opinion is directed to the end of supporting their declared conclusion that a person in the position of defendant petitioner has no right whatsoever to any judicial process.
Certain it is that this court did not intend to rule that defendant petitioner did have a right to judicial review of the administrative agent’s ruling and that, having such right, habeas corpus was an improper, and mandamus the only proper, remedy.
That mandamus is not a proper vehicle here is apparent at once. Mandamus is an extraordinary remedy and “is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress.” (16 Cal.Jur. § 17, p. 784.) Habeas corpus is the usual and ordinary remedy for trying out the legality of the place of one’s detention. Our Penal Code expressly provides for just such situations as that presented here: Section 1473 provides that “Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint”; sections 1486, 1487(5) and 1493 provide that when a person is detained under court commitment but “When the person having the custody of the prisoner is not the person allowed by law to detain him, ’ ’ the court shall exercise the writ and ‘ ‘ order such party to be committed to the restraint or custody of such person as is by law entitled thereto.” It is, and eon*171sistently has been since his adjudication of insanity, the position of defendant petitioner that the superintendent of the state hospital, not the warden of the prison, is entitled to his custody. That position is correct so long as defendant remains legally insane and the judgment of the superior court perdures. Whether the final judgment of a court of record continues in effect is a question which a court, rather than a layman, should, in the last analysis, determine. Likewise, if rights (to life or death or to property or liberty) depend on it, a person should certainly be entitled to have a judicial determination as to whether he is legally insane. Unless the court determines that fact neither the prisoner nor any court can know by what standard the fact has been determined. Our code provides no standard for determining legal insanity; our courts have set one up for their own proceedings but there is none prescribed for administrative agents. Even if we assume that the hospital superintendent has the power to make a prima facie or preliminary determination of restoration to legal sanity his determination must be subject to judicial review. That much seems clear from the United States Supreme Court’s language in Phyle v. Duffy and Ng Fung Ho v. White (1921), 259 U.S. 276 [42 S.Ct. 492, 66 L.Ed. 938]. The obvious, the direct and the ordinary method for applying the judicial test in such cases is habeas corpus.
The difficulty we are facing stems from the majority holding in In re Phyle (1947), supra, 30 Cal.2d 838, joined with what appears to have been spur-of-the-moment adroitness of the attorney general in defending the majority opinion before the Supreme Court of the United States. The error of this court lay in holding that the ruling of the administrative agent (the medical superintendent of a hospital) terminating or superseding the judgment of a superior court was not subject to any judicial review in any court. The error of the attorney general, which was accepted and relied upon by the United States Supreme Court as the basis for its decision, lay in interpreting our majority decision not as denying the right to all judicial review but simply as denying habeas corpus as inappropriate, while suggesting mandamus as the appropriate, vehicle for review. But, as previously shown, our court made and intended no such holding. Every member of our court knows that the majority intended to hold that the ruling of the administrative agent was not subject to any judicial review. If our court had intended a contrary holding *172—that the petitioner was entitled to a judicial review of the administrative agent’s holding; i. e., to a judicial determination of the legality of his place of detention and the identity of his jailer (see Pen. Code, §§ 1473, 1487(5), 1493, supra)—I think it is reasonably certain that at that time a majority if not all of the court would have held that habeas corpus was the proper remedy. I am sure that no member of the court, in making his decision, contemplated suggesting that the decision should be sustained on the theory that it admitted of judicial review for the agent’s ruling and that mandamus as contradistinguished from habeas corpus was the proper vehicle for that review.
Unless this court is to perpetuate and encourage error, confusion, delays and cumbersome procedural griefs, both in this court and elsewhere, in the administration of criminal law in death penalty cases the correct and exclusive procedure in such cases as this—habeas corpus—should be pointed out and adhered to rather than abandoned or augmented by an additional trial court procedure.
In the previous application for habeas corpus, the rendition and entry of the judgment, after trial by jury, determining petitioner to be insane were alleged and it was further averred and not denied that petitioner was still (as of that date) insane. Unless the so-called ruling of the administrative agent that petitioner had been restored to sanity is, as was then held by the majority, entirely beyond judicial reach, then habeas corpus was and still is the proper, the plain, the direct, and the exclusive remedy. Until In re Phyle that had been the law since Kellogg v. Cochran (1890), 87 Cal. 192, 197 [25 P. 677, 12 L.R.A. 104].
It is my view that under the circumstances shown here habeas corpus is the only proper and the most desirable remedy. Petitioner has already had the remedy provided by sections 3701 and 3703 of the Penal Code. The warden did believe that petitioner was insane; he acted on that belief; the question of petitioner’s sanity was duly brought to trial before a jury; the jury found petitioner to be insane; judgment so decreeing was duly entered; no motion for new trial was made and no appeal was taken; the judgment remains outstanding, fully valid and operative unless petitioner has recovered his sanity. Whether or not he has recovered his legal sanity is the decisive question. That is the fact question for judicial determination; upon that fact depends the legal question as to whether petitioner shall be in the custody of *173the superintendent of the hospital or that of the warden of the prison. Habeas corpus is the established, convenient, available and ordinary remedy to try out both the factual and legal issues.
On the other hand, if the court is to gore itself on the other horn of its dilemma, then, as heretofore indicated, I think that the original insanity proceedings in themselves (all had “after . . . [petitioner’s] delivery to the warden for execution”), particularly in the light of the solemn judgment based on the jury’s verdict, constitute, as a matter of law, “good reason to believe that a defendant . . . had become insane” “after his delivery to the warden for execution” and, hence, that if an administrative agent thereupon and thereafter assumes to differ with such judicial determination, one of two things should inevitably follow (at least if his ruling is challenged) : Either the judgment should be respected and upheld as against the administrative agent or proceedings should be had in a court of competent jurisdiction to set aside and annul the judgment or to supersede it with one of at least equal and later authority—one which we can know is based on the same standard of legal insanity as was the one to be superseded.
The judgment that had been entered decreed that petitioner was insane, committed him to the state hospital for the criminal insane, and adjudged that he be there confined “until his reason be restored.” The basic contention of petitioner is that his reason, by legal standards, has not in fact been restored. If in truth his reason, by such standards, has not been restored the judgment already rendered fully protects him against execution while insane; a new judgment to that effect can add nothing; the new one could be set aside as quickly as the old one; it would have no more prima facie or ultimate value than the old one. There is then no occasion for a new trial under section 3701 et sequitur. But if in truth and upon legal standards petitioner has recovered his reason, that fact can easily and promptly be ascertained and determined with legal finality in a habeas corpus proceeding. There is no occasion for inviting the uncertainty, circuity, appeals and other delays attendant upon the added trial court procedure here sought to be innovated.
For the reasons stated it seems obvious that at this stage of the prosecution of Phyle and under the circumstances which have been enumerated, the application for mandamus is inappropriate. It is inappropriate because the remedy it seeks *174has already been accorded to Phyle; he has had the jury trial for which provision is made; he has been adjudged insane and the judgment still stands, as fully efficacious—if Phyle remains legally insane—as a new judgment under new proceedings could be. And the simplest and most direct vehicle for determining whether he is still insane by the judicial standard, the only one which avoids appeal by the petitioner, and other indirection and causes of delay, is the ordinary one of habeas corpus.
The total undesirability of following the newly suggested expedient of substituting mandamus for habeas corpus or of setting it up as an independent and additional procedure (as a method for review of proceedings after trial and judgment of insanity in proceedings pursuant to Penal Code, section 3701 et sequitur) is emphasized by the consideration of what must follow if rationality and consistency are to obtain: If we assume that the remedy petitioner seeks here is a proper one, technically, notwithstanding the outstanding judgment, then it would seem to follow that surely such outstanding judgment must be accorded some weight, some prima facie significance; it should be considered as establishing, as a matter of law, that “good reason” exists for believing petitioner to be insane. General legal insanity, once adjudicated, is presumed to continue until the contrary is shown. (14 Cal.Jur. § 19, p. 363; 28 Am.Jur. §121, p. 751; Estate of Baker (1917), 176 Cal. 430, 436 [168 P. 881].) The judgment, itself, constitutes “good reason” for believing Phyle to be insane. As emphasized in the opinion of the United States Supreme Court (p. 443 of 334 U.S.) it is not the belief of the warden nor the fact of insanity which must control the right to a jury trial of sanity if the procedure under section 3701 et sequitur be available. The court said: “In considering what the issues may be in a mandamus proceeding, it must be borne in mind that the warden is under a mandatory duty to initiate judicial proceedings, not when a defendant is insane, but when ‘ there is good reason to believe’ he is insane.” (Italics are those of court.) And the “judicial proceedings” so made available are by the statute expressly and mandatorily made to encompass a jury trial. “ [T]he court must at once cause to be summoned and impaneled, from the regular jury list ... a jury of 12 persons to hear such inquiry.” (Pen. Code, § 3701.) The duty of the warden then would seem obvious: since “good reason” exists for the belief that petitioner is insane, the *175warden has no power to try out the ultimate fact; that fact must be determined by a jury. If mandamus be available the warden, under the circumstances shown here, has no discretion to do otherwise than again initiate the roundabout proceedings for another jury trial and judgment which could be, according to the majority, at once set aside by the hospital superintendent. But whether the warden initiates such special proceeding or not the petitioner, by this newly suggested procedure, is given a right to a hearing of some hind in a trial court, and, since it is in a trial court, he has a right to appeal in the event of an adverse decision. On the other hand, if we adhere to the traditional and statutory remedy of habeas corpus the procedure is well defined and direct. It affords ample protection and expeditious procedure to both the condemned and to the State. The protection of the state (and of the court) against groundless applications is simple; it is that which we use constantly in other applications of the writ. We require a prima facie showing of evidentiary facts and do not issue the writ on the bald allegation of a conclusion or ultimate fact. By way of example, when application for the writ is made on the ground of denial of due process in that the prosecution has introduced and relied upon perjured testimony, with knowledge of its falsity, we require more than the conelusionary averment of the asserted ultimate fact; we require a specification of the evidence in detail and of the circumstances showing knowledge of its falsity by the prosecution. A similar prima facie specification of evidentiary matters should be required in applications for the writ under the circumstances shown here.
The present case is not controlled by Williams v. Duffy (1948), 32 Cal.2d 578 [197 P.2d 341]. In that case the question of the sanity of the prisoner condemned to death was raised for the first time by application for the writ of mandate. There was not there, as there has been here, a trial and an existing, at least prima facie valid, judicial determination that the prisoner was insane. Whether mandamus is, or is not, available as a remedy in an application of first instance as in the Williams case we need not here consider.
For the reasons above stated I would affirm the judgment solely on the ground that under the circumstances shown mandamus is an inappropriate, and habeas corpus is the only ax>propriate, remedy; but if the majority are to retroactively, as it were, adopt the suggestion of the attorney general and *176the assumption of the United States Supreme Court, and now hold that mandamus is an appropriate remedy, whether exclusive or additional, then the judgment should be reversed.
Carter, J., concurred.
Appellant’s petition for a rehearing was denied August 25, 1949. Carter, J., and Sehauer, J., voted for a rehearing.
This is true unless we are to hold that the mere passage of time alters the issues and consequently entitles a condemned person to repeated trials in a trial court on the same issues as of each new date he may select; or, if the warden or district attorney neglect to suggest or institute such trials then, by the majority opinion, the condemned person, apparently as often as he may ask, is entitled to a trial—in the trial court— labeled mandamus,” and, if the judgment be adverse, to an appeal from such ruling.
A reading of the statute (Pen. Code, $ 3700) discloses that it does not ‘ ‘ expressly prohibit [ ] ” any such proceeding. The context of the statement suggests that it should be understood as argumentum ad auctoritatem praestandam; it argues that since the court itself may not (it assumes or declares as a premise) suspend execution in any case but on appeal, then the power and jurisdiction to review in any ease but on appeal are to be understood as impliedly prohibited. In other words this argument, sweeping aside without comment all constitutional considerations of due process (see People v. Shorts (1948), 32 Cal.2d 502, 506 [197 P.2d 330]; Mooney v. Holohan (1935), 294 U.S. 103, 110 [55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406]; Taylor v. Alabama (1948), 335 U.S. 252 [68 S.Ct. 1415, 92 L.Ed. 1935]) would completely abolish habeas corpus, coram nobis, and all other judicial remedies in death penalty cases, except appeals from the judgment of conviction.
Our statute purports only to authorize the superintendent to declare the fact when it has been in some way previously ascertained and determined; certainly it does not expressly, and there is at least grave doubt that it does impliedly, authorize the superintendent to himself determine the fact; nor does it establish any standard by which the determination shall be made by court or layman. (See Pen. Code, §§ 3701-3704.)