concurring in part, dissenting in part. I agree with that portion of the majority opinion that held the circuit court did have authority to acquit appellant even though he was at that time incompetent to stand trial. Ark. Stat. Ann. § 41-609 (Repl. 1977) authorizes the acquittal of an accused without a trial if the court feels the psychiatric report sufficiently indicates the accused lacked the capacity at the time of the alleged offense to conform his conduct to the requirements of law or to appreciate the criminality of his conduct. I find no conflict between this provision and Ark. Stat. Ann. § 41-603 (Repl. 1977) which prohibits a trial, conviction, or sentence so long as an accused lacks the capacity to understand the proceedings against him or to assist effectively in his own defense. The two statutes are part of the same act and were adopted simultaneously. In such instances, we always try to give effect to both statutes rather than to declare one void. Furthermore, an acquittal without a trial is simply not a trial, conviction or sentence.
The majority opinion acknowledges that after acquittal, appellant was properly committed by the Franklin County Circuit Court to the Arkansas State Hospital pursuant to Ark. Stat. Ann. § 41-612 (Repl. 1977) and that his release is governed by Ark. Stat. Ann. § 41-613 (Repl. 1977). I depart from the majority when they depart from the provisions of § 41-613 by “reading into it” a requirement that due process requires a civil commitment pursuant to Ark. Stat. Ann. § 59-1401, et seq (Repl. 1971). The trial court found that the constitutionality of the committing statute had not been challenged. It is my belief that in the absence of declaring it' unconstitutional, the provisions of § 41-613 should be followed. Rather than remanding to the chancery court with directions involving a possible civil commitment, I would affirm the action of the chancellor denying the writ of habeas corpus. Such affirmance should, however, be without prejudice to appellant or his mother as his next friend to petition the Franklin County Circuit Court pursuant to § 41-613 to determine if he still presents a danger to himself or to the person or property of others. If he still does present such danger, he should remain in the Arkansas State Hospital. Sufficient “due process” is afforded appellant by § 41-613(2) which authorizes unlimited petitions to the committing court so long as such petitions are filed no sooner than one year following the disposition of the previous application.
Hickman, J., joins in this opinion.