concurring in part, dissenting in part. I agree partially with the result reached in the majority opinion, but I cannot agree with its means of reaching the result or its disposition of the case.
Appellant Stover, by his next friend, complains that the order of the Circuit Court of Franklin County committing him to the Arkansas State Hospital was beyond the jurisdiction of that court and is, therefore, invalid on its face. If this is true, habeas corpus was the proper remedy, and the court in which the application was made had jurisdiction to grant the relief against officers of the state in charge of a facility in Pulaski County in which Stover is held.
Habeas corpus, generally speaking, is a legal, not an equitable remedy. 39 CJS 461, Habeas Corpus, § 3. The jurisdiction of equity, however, may be utilized in connection with its general supervisory authority over the persons of individuals under legal disability to the extent it has not been transferred to probate courts. 30 CJS 884, Equity, § 51; 27 Am. Jur. 2d 592, Equity, § 69.1 The writ was properly returned to the Chancery Court of Pulaski County, the county in which Stover was held in custody. State Dept. of Public Welfare v. Lipe, 257 Ark. 1015, 521 S.W. 2d 526.
The response of the appellee to the writ was that Stover was lawfully committed pursuant to Ark. Stat. Ann. § 41-612 (Repl. 1977) on December 12, 1979- It was asserted that, by this order, Stover was acquitted of the charge of murder, which had been pending when Stover was committed to the state hopital for observation on December 21, 1977, and for diagnosis, treatment and custody on July 7, 1978. The Commissioner of Mental Health Services contends that Stover’s only remedy is by petition under Ark. Stat. Ann. § 41-613 (Repl. 1977). The chancery court held that the order of acquittal was proper, that the constitutionality of Ark. Stat. Ann. § 41-609 (Repl. 1977) had not been raised and that no reason for an order of release of Stover under Ark. Stat. Ann. § 34-1733 (Repl. 1962) had been shown to exist. The chancery court was in error. Even if the process committing Stover was in proper form, there was reason for the court to grant relief to him, if the process was issued under circumstances not authorized by law. Rowland v. Rogers, 199 Ark. 1041, 137 S.W. 2d 246.
Appellant contends that the trial court had no power under § 41-609 (Repl. 1977) to acquit him. It seems that there had been full compliance with the requirements of Ark. Stat. Ann. §§ 41-605 and 41-606 (Repl. 1977). The reports required by Ark. Stat. Ann. § 41-607 (Repl. 1977) were filed and the circuit court found that Stover was unfit to proceed, but did not release him, as it might have done had it found that he did not present a danger to himself or others. Ark. Stat. Ann. § 41-607 (2) (c) (Repl. 1977).
The problem presented here arose when the circuit court entered a judgment of acquittal under § 41-609 on the ground of Stover’s mental disease or defect, having been satisfied that, at the time of the conduct on which the charge against him was based, he lacked capacity to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. Thereafter, the court committed Stover pursuant to Ark. Stat. Ann. § 41-612 (1) (a). There is nothing in § 41-609 that indicates that it is properly applicable to one, such as Stover, who lacks fitness to proceed. The circuit court’s jurisdiction as to one who lacks fitness to proceed is set out in Ark. Stat. Ann. § 41-607 (Repl. 1977).
At the time of the order of which appellant now complains, the court had before it a report filed under § 41-607 (2) (a). The report indicated that Stover was not fit to proceed. The court had jurisdiction, upon finding that Stover was unfit to proceed, to either release Stover upon conditions prescribed in its order or order the Director of the State Hospital to proceed under Ark. Stat. Ann. § 59-408 (Repl. 1971). The criminal proceeding could only be resumed under conditions set out in § 41-607 (3). No judgment, even of acquittal, could be entered without a presumption of the criminal proceedings.
I agree with appellant that the order of the Circuit Court of Franklin County acquitting him is void because it was beyond the jursidiction of that court. The jurisdiction of circuit courts over mentally incompetent persons is very limited. The Constitution of Arkansas vests jurisdiction of persons of unsound mind in the probate court by Art. 7 § 34 and Amendment 24. Consequently, the exercise of jurisdiction over a mentally incompetent person must be incident to the exercise of criminal jurisdiction. Baker v. Young, 121 Ark. 537, 182 S.W. 279. In that case, the court had before it another statute, which, on its face, required the superitendent of the state insane asylum to admit, upon the certificate of the judge of the court before whom the charge was pending, any person acquitted of a criminal charge upon a plea of insanity and to hold such person until he was restored to reason. This court held, because of the limited jurisdiction of the circuit court, that the circuit judge’s certificate was only a means for admission of the acquitted person to the asylum and not an adjudication of insanity, and was merely prima facie evidence upon which the accused could be held until there was an adjudication by the probate court, the court having exclusive jurisdiction, which may be invoked at any time. It was said that the statute then questioned was a valid enactment when viewed in that light. We must also view the current statute in the same light; otherwise, it is unconstitutional. Baker, like this case, was a review of the denial of habeas corpus by the Chancery Court of Pulaski County. This court said that the petitioner’s proper remedy was to apply to the probate court for an adjudication of the question of his sanity.
The circuit court’s order in this case is not and cannot be authority for Stover to be held by the appellee, if there are no criminal proceedings pending against him. If the acquittal is valid, he can be held by the state hospital only for such period of time as may be required to an adjudication by the probate court. If the acquittal is invalid, then the circuit court could only have directed appellee to apply to the probate court for commitment under Ark. Stat. Ann. § 59-408 (Repl. 1971). See § 41-607 (2) (d).
The majority has not bothered to explain the difference between this case and Baker, probably because there is none. If there is, it should be demonstrated. Baker cannot properly be ignored. It is certainly sound under our constitution. Even if recognized, a proper result could be reached under its holding, if the acquittal had been valid. The majority says that Stover is not deprived of his liberty as the result of a criminal proceeding. How else could the circuit court have possibly committed him?
It has been suggested that appellant through his next friend, is in no position to complain of his acquittal, however adverse to him the ultimate consequences may be, because his attorney moved that the order be made. A basic premise of unfitness to proceed is the defendant’s capacity to understand the proceedings against him and to assist effectively in his own defense. Ark. Stat. Ann. § 41-603 (Repl. 1977).
The test was most thoroughly stated in Dusby v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960). According to that case, the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” We applied that test in Deason v. State, 263 Ark. 56, 562 S.W. 2d 79, cert. den. 439 U.S. 839, 99 S. Ct. 126, 58 L. Ed. 2d 136. The question is essentially a jurisdictional one. Rogers v. State, 264 Ark. 258, 570 S.W. 2d 268.
Appellant is not barred from questioning the court’s action in “acquitting” him, if that action is detrimental to him, unless it can be said that he has either waived the right through his attorney’s action or he is estopped by it. But neither waiver nor estoppel should be applied if Stover did not have a rational and factual understanding of the proceedings or the ability to consult with his attorney in a meaningful manner.
I cannot agree with the majority’s disposition of this case. It is not the province of appellee to make any determination whether Stover is a danger to himself or society. That finding can only be made by the Circuit Court of Franklin County, in the first instance, and it has been made. That finding only authorizes the holding of Stover until the probate court makes a determination. In my opinion, appellee should apply within 30 days to the circuit court for authorization to proceed under § 59-408 and hold Stover until such proceedings can be concluded, or Stover should be released by a court having jurisdiction.
It does not appear that probate courts have habeas corpus jurisdiction.