I dissent. I do not agree that the trial judge was required to adopt the opinion of the medical witness as the decision of the court. The statute (Pen. Code, § 1026) provides that a defendant who has been committed to a state hospital for the criminal insane shall not be released from confinement unless the court which committed him, or the superior court of the county in which he is confined, shall find and determine that his sanity has been restored. It is therefore clear that the trial judge had a judicial function to perform. His function, of course, was more than the performance of a mere ministerial act of adopting the ipsedixitism of the medical witness. The judge was required to determine the fact as to .whether or not Perkins’ sanity had been restored. The judge was the one who, in the exercise of discretion and independent judgment, had the responsibility of determining the facts.
Perkins, who killed a human being in San Francisco on November 28, 1957, was tried in San Francisco, before Judge Caulfield without a jury, upon a charge of murder. He was found not guilty by reason of insanity and was committed to the state hospital for criminal insane at Atascadero, in San Luis Obispo County, on March 14, 1958. On August 27, 1958 (about five and one-half months after he was committed), he made application to the superior court of San Luis Obispo County for release, and alleged therein that his sanity had been restored.
• Such an application could be made to the superior court in’ San Francisco from which he was committed, or in the superior court in San Luis Obispo County in which county he was confined. (Pen. Code, § 1026a.) In a hearing upon the application the burden of proving that his sanity had been restored was upon Perkins. (See Pen. Code, § 1026a.) The presumption that Perkins was insane was evidence. The burden was upon Perkins to present evidence that would ■rebut and overcome that presumption. The trial judge, who was the trier of the facts and the one authorized to issue the release, was the one to be convinced, by the evidence produced, that Perkins had carried the burden of proof and had overcome the presumption that he was insane.
*83The hearing upon the application was bn September 19, 1958 (about six months after Perkins was committed). The minute entry on that day states: “The Petition is denied, the-Writ is ordered discharged, and the Petitioner is remanded to the care and custody of Dr. R. S. Rood, Atascadero State Hospital, for continued care and treatment.” On September 24, 1958, the judge made a formal signed order which stated: “. . . That said Walter Perkins continues to be insane and should be confined in a State Institution for care and treatment; Wherefore, it is hereby ordered that said Walter Perkins be remanded to the custody of R. S. Rood, M.D., Superintendent and Medical Director of the Atascadero State Hospital, Atascadero, California.”
The return to the writ of habeas corpus (the writ issued by the San Luis Obispo court) was signed by Dr. Neufeld, who was the witness at the hearing. (The return was made by him on behalf of the superintendent of the hospital—the superintendent’s name was in typewriting.)
Dr. Neufeld, in his testimony, undertook to relate “The situation that led up to the incident that caused” Perkins to be committed to the hospital. He testified that Perkins had been using alcohol excessively, “according to the records, approximately a fifth of a gallon of wine had been consumed daily over a considerable period of time”; that (as a result thereof) Perkins was confined in a hospital, the consumption of alcohol was discontinued abruptly, and drugs were administered; that those things “contributed to causing his condition” which is known as alcoholic hallucinosis. He testified further that such a “condition [alcoholic hallucinosis] subsides within a month or less”; and that “Some people fail to differentiate between alcoholic hallucinosis and delirium tremens.”
While Dr. Neufeld was a witness, the judge said that if Perkins were released it is possible that he might get alcoholic hallucinosis again and kill somebody. The witness replied, “It is possible, yes.” The judge said: “Here is a man that kills a person and in less than a year he wants to get out, and if he got alcoholic hallucinosis he might very well maybe kill a person again.” The witness replied, “We can’t exclude that possibility, no. ’ ’ After the judge said that he was 11 going to deny the writ and find and determine that the sanity of Walter Perkins has not been restored,” the witness said that not only alcoholic hallucinosis was involved, but that an acute *84febrile condition and the administering of drugs were also involved, and that it was rather unusual to have a combination of those circumstances which would be necessary to create the possibility that this sort of thing might recur.
The testimony of the witness included statements which might well have caused the trial judge to decline to rely on his opinion.
In the beginning of his testimony the witness made a statement as to what he understood to be the situation that led up to the incident that caused Perkins to be committed. His testimony indicates that his understanding as to that situation was based upon Ms understanding as to what was shown by “the records.” Apparently he was giving his version or interpretation of the testimony and proceedings in the San Francisco court where Judge Caulfield presided.
It is to be noted further that the opinion of the witness was that the condition of Perkins (at the time of the killing) was a kind of insanity known as alcoholic hallucinosis and that such a condition “subsides within a month or less.” The trial judge might well have concluded, by reasons of other evidence, that the opinion of the witness was erroneous. The fact is that the killing occurred on November 28, 1957, and that on March 14, 1958 (about three and one-half months after the killing), Judge Caulfield of the San Francisco court found that Perkins was then “presently insane.” In other words, the kind of insanity which Perkins had at the time of killing did not “subside within a month or less” but had continued for three and one-half months after the killing and was still existing at the time of the commitment. The fact that the insanity which Perkins had did not subside within a month is a refutation of the opinion of the witness that the kind of insanity was alcoholic hallucinosis.
It is also to be noted that the witness said that some persons fail to differentiate between alcoholic hallucinosis and delirium tremens. The reason for the reference to delirium tremens does not appear. That reference, however, might indicate to the judge that the subject of delirium tremens had been involved in the trial in San Francisco.
If the trial judge had no judicial function to perform, and was not entitled to weigh the testimony of the witness and consider his manner and conduct while testifying, there would be no point in the legislative requirement that a hearing be had before the court. As above stated, the judge was the trier of the facts and was the one to be convinced that Perkins *85had carried the burden of proof and had overcome the presumption that he was insane. The trial judge was not required to be so convinced by such testimony of the medical witness. It was not necessary for the judge to comment as to whether or not he questioned the opinion of the medical witness. He made a definite and formal finding that Perkins continues to be insane. It is apparent that the trial judge was of the opinion that in order for Perkins to present the full ease regarding his application for release he should have made the application to the San Francisco court from which he was committed. In that connection the trial judge remarked that only a short time had elapsed since Perkins was committed, and that all the records and files were in the San Francisco court. It is reasonable to assume that the trial judge considered that if Perkins elected to make an application in San Luis Obispo County, where the judge had no previous connection with the case, instead of making application in San Francisco, where the committing judge still presides and where the records and files are, then, in order for the trial judge herein to assume the responsibility of issuing the release, the burden was on Perkins to present the full case for the consideration of the court.
At the time of making the order herein, the trial judge referred to the testimony of the medical witness wherein the witness said that it was a possibility that Perkins might have alcoholic hallucinosis again.
In my opinion, the trial judge properly exercised his judicial function of determining the facts; and the order was amply supported by the evidence.