No. 12753 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

STATE OF MONTANA ex rel. WILLIAM T. MAIN, 

Relator, 

THE DISTRICT COURT OF THE FIFTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF BEAVERHEAD, and THE 

HONORABLE FRANK E. BLAIR, Presiding Judge, 

Respondents. 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Relator : 

Smith, Smith and Sewell, Helena, Montana 

Chadwick H, Smith argued, Helena, Montana 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

W. G. Gilbert 111, County Attorney, argued, Dillon, 

Montana 

Submitted: May 23, 1974 

Filed : JvL 8 1 1914 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an original proceeding wherein relator William T. 

Main petitions for a writ of supervisory control or other appropriate 

writ seeking in effect dismissal of an Information and a finding of 

acquittal by the district court of the fifth judicial district, 

county of Beaverhead. 

The issues here arose out of the filing of an Information 

charging the crimes of rape and assault in the first degree. The 

Information was filed on March 2, 1971. Relator was represented by 

counsel who represented to the court that relator suffered from a 

mental defect and required a psychiatric examination, The court 

granted counsel's request and petitioner was committed to the state 

hospital for evaluation without an arraignment. 

Following examination and evaluation, a report was made to 

the court by Dr. M.F. Gracia, clinical director at the state 

hospital. The report stated relator was suffering from a mental 

defect or disease which prevented him from conforming his conduct 

to the requirements of the law at the time of the criminal conduct 

charged and further that relator's capacity to understand the 

proceedings against him and assist in his own defense was impaired. 

This report was filed on April 14, 1971. On July 3, 1971, following 

the submission of briefs by both parties, the court found relator 

was suffering from mental disease which prevented him from understanding the nature of the proceedings against him and from assisting 

in his own defense. The court committed relator to the state hospital 

until such time as he was able to understand the nature of the proceedings against him and to assist in his own defense, 

Relator remained at the state hospital pursuant to the court's 

order, undergoing treatment under the direction of Dr. Gracia. On 

August 4, 1972, relator's guardian moved the court to allow relator 

to be transferred to American Lake Hospital in Tacoma, Washington, 

( a federal hospital) for more extended treatment. This treatment 
was recommended by a staff psychiatrist at the state hospital. 

No action was taken by the court for nearly one year, when on July 

9, 1973, relator moved the court to dismiss the Information and 

grant a judgment of acquittal on the grounds that at the time of 

the crime relator was suffering from a mental disease or defect 

which rendered him unable to appreciate the criminality of his 

conduct or to conform his conduct to the requirements of law. 

A hearing was had on relator's motion on November 13, 1973, 

Relator offered the testimony of Dr. Gracia and the state offered 

the testimony of a Dr. Stanley G. Moisey, a practicing psychiatrist 

from Missoula, Montana. The transcript of this hearing along with 

all of the files and exhibits of this case are before this Court 

for consideration. 

Dr. Gracia testified as to relator's psychiatric history: 

1. That he had first examined relator in 1966 on an emergency 

commitment and relator was under his care for some two and a half 

months. 

2. That relator had a history of mental illness dating back 

to 1962 according to medical records of the United States Army. 

These records indicate he was treated at Letterman General Hospital 

in San Francisco for psychiatric disorders. 

3. That from 1962 to the time of the alleged crimes, relator 

had a history of commitment and recommitment in mental institutions 

including the American Lake Hospital in Washington. 

Based on the treatments given relator at the state hospital 

under the supervision of Dr. Gracia and the medical records 

available from other mental treatment institutions, Dr. Gracia 

diagnosed relator's condition to be acute schizophrenia, schizophrenia 

paranoid type, anti-social personality and schizophrenic-chronic 

undifferentiated type. Dr. Gracia's opinion, after examining and 

treating relator, was that he I' * * * was not able to conform his 

conduct to the requirements of the law at the time of the criminal 

conduct charged * * *. " 
Dr. Moisey testified for the state and stated he had 

examined relator between October 18 and October 29, 1973. In 

addition he interviewed the victim, the county attorney of Beaverhead County and reviewed the case histories of the state hospital 

and the American Lake Hospital, Tacoma, Washington, in regard to 

relator. 

With this background of information, Dr. Moisey testified 

that in his opinion he did "not see evidence that he was so grossly 

mentally disturbed that he was unable to appreciate what he was 

I' doing at the time. In his opinion relator was presently capable 

of standing trial. 

In weighing the consideration to be given Dr. ~oisey's 

testimony we note that just three questions before the above quoted 

testimony, Dr. Moisey testified: "Well from my examination of 

William Main, it was not possible for me to determine his state of 

mind at the time of the alleged offense in 1971." Dr. ~oisey's 

examination of relator occurred two and one half years after the 

offense and no testimony was offered by Dr. Moisey or the state 

with regard to relator's ability at the time of the alleged offense 

to conform his conduct to the requirements of the law. 

On December 11, 1973, after the hearing, Judge Blair entered 

an order denying relator's motions on the basis that Dr. Moisey 

expressed an opinion that: (a) in spite of his history of mental 

disease, defendant has the capacity to understand the proceedings 

against him and to assist in his own defense; (b) that defendant 

was able to appreciate the criminality of his conduct and to conform 

his conduct to the requirements of the law at the time of the 

criminal conduct charged. On that basis Judge Blair stated that a 

factual question for the jury was raised. 

On December 24, 1973, the county attorney dismissed the original 

Information and refiled an identical Information charging relator with 

the same offenses. 

Three issues are presented in this application for a writ of 

supervisory control, all are directed to the trial court's abuse of 

discretion: 
1. The district court committed reversible error in refusing 

to grant relator's motion to dismiss and for judgment of acquittal 

on the grounds that the only competent evidence shows that at the 

time of the alleged offense relator was unable to appreciate the 

criminality of his conduct or to conform his condust to the requirements of the law because of a mental disease or defect. 

2. The district court committed reversible error in refusing to dismiss the Information on the ground that so much time had 

elapsed since the arrest that it would be unjust to resume the 

criminal proceedings under the circumstances of this case. 

3. The issues presented by this application are not rendered moot by the action of the district court in dismissing the Information against relator and allowing immediate refiling of an 

identical Information. 

In our discussion of the issues raised we will consider 

the issues as one. 

Relator argues that in failing to grant relator's motion 

to dismiss and for a judgment of acquittal the trial court committed error. The controlling statutes are sections 95-501, 505, 

507, R.C.M. 1947. Under the provisions of section 95-501, in order 

to sustain a criminal charge the state must be able to prove 

criminal intent: 

"95-501. Mental disease or defect excluding 

responsibility. (a) A person is not responsible 

for criminal conduct if at the time of such conduct 

as a result of mental disease or defect he is unable 

either to appreciate the criminality of his conduct 

or to conform his conduct to the requirements of law, I I 

In this case the defense of mental disease or defect was 

given and the district court, following the provisions of section 

95-505, R.C.M. 1947, sent relator to the state hospital for an 

evaluation and to determine whether or not relator understood the 

criminality of his conduct or could conform his conduct to the 

requirements of the law at the time of the criminal conduct charged 

or had the capacity to assist in his defense. 
Section 95-505, R.C.M. 1947, provides: 

"95-505. Psychiatric examination of defendant with respect to mental disease or defect. (a) Whenever the defendant has filed a notice of intention to rely on the defense of mental disease or 

defect excluding responsibility, or there is reason 

to doubt his fitness to proceed, or reason to believe that mental disease or defect of the defendant will otherwise become an issue in the cause, 

the court shall appoint at least one (1) qualified 

psychiatrist or shall request the superintendent of 

the Montana state hospital to designate at least one 

(1) qualified psychiatrist, which designation may be 

or include himself, to examine and report upon the 

mental condition of the defendant. The court may 

order the defendant to be committed to a hospital 

or other suitable facility for the purpose of the 

examination for a period of not exceeding sixty 

(60) days or such longer period as the court determines to be necessary for the purpose and may direct 

that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the 

examination. 

I I (b) In such examination any method may be employed 

which is accepted by the medical profession for 

the examination of those alleged to be suffering 

from mental disease or defect. 

"(c) The report of the examination shall include 

the following : 

"(1) A description of the nature of the examination; 

"(2) A diagnosis of the mental condition of the 

defendant; 

"(3) If the defendant suffers from a mental disease or defect, an opinion as to his capacity to 

understand the proceedings against him and to 

assist in his own defense. 

"(4) When a notice of intention to rely on the 

defense of irresponsibility has been filed, an 

opinion as to the ability of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law at the 

time of the criminal conduct charged; and 

"(5) When directed by the court, an opinion as to 

the capacity of the defendant to have a particular state of mind which is an element of the offense 

charged. 

!I If the examination cannot be conducted by reason 

of the unwillingness of the defendant to participate therein, the report shall so state and 

shall include, if possible, an opinion as to 

whether such unwillingness of the defendant was 

the result of mental disease or defect. 
' he report of the examination shall be filed (in 

triplicate) with the clerk of court, who shall 

cause copies to be delivered to the county attorney 

and to counsel for the defendant. It 

Having followed the above procedural statutes, and having 

received the statements of evaluation and prognosis of the two 

psychiatrists the court was then confronted with the alternative 

actions that can be applied under the provisions of section 95- 

507 (a), R.C.M. 1947: 

"95-507. Determination of irresponsibility on 

basis of report--access to defendant by 

psychiatrist of his own choice--form of expert 

testimony when issue of responsibility is tried. 

(a) If the report filed pursuant to section 

95-505 finds that the defendant at the time of 

the criminal conduct charged suffered from a 

mental disease or defect which rendered him unable 

to appreciate the criminality of his conduct or to 

conform his conduct to the requirements of law, 

and the court, after a hearing if a hearing is requested 

by the attorney prosecuting or the defendant, is satisfied that such mental disease or defect was sufficient 

to exclude responsibility, the court on motion of the 

defendant shall enter judgment of acquittal on the 

ground of mental disease or defect excluding responsibility. " 

The problem here is whether under the discretionary provisions of section 95-507, there was an abuse of discretion 

in giving such weight to the testimony of Dr. Moisey as to now 

require the question of mental competency to go to a jury. 

Respondent court argues that this is a matter entirely 

up to the discretion of the trial court; that there have been 

three hearings before the court during which time the court 

could observe relator and that in employing Dr. Moisey the 

court could and did get medical testimony that, in the court's 

opinion, was such that he (the trial judge) felt the matter 

should be submitted to a jury. 

Relator argues that Dr. Moisey's testimony failed to raise 

a factual question, noting that Dr. Moisey did not, and he testified he could not, testify as to relator's mental condition at 

the time of the criminal act charged, as required by section 

95-507, R.C.M. 1947. We agree. 
The statute was particularly designed to procedurally 

process just such a case as we have before us here. Relator 

has been in custody over three and one-half years at the state 

hospital and the overwhelming weight of all of the testimony, 

much of which is based on the medical records before the court, 

is that relator suffers from such mental disease or defect as 

to exclude responsibility for his acts. 

There is no medical testimony contrary to Dr. ~racia's 

testimony that relator "was not able to conform his conduct to 

the requirement of the law at the time of the criminal conduct 

charged." Dr. Gracia based this opinion on (1) an examination 

of relator several weeks after the alleged crime; (2) upon extensive psychological testing and medical examination including 

observation by staff personnel every day for several years; (3) 

upon the study of relator's social history and history of mental illness dating back to 1962; and (4) the doctor's personal 

contact with relator beginning in 1966. 

In State ex rel. Krutzfeldt v. District Court, - Mont . -9 515 P.2d 1312, 1315, 30 St.Rep. 993, this Court discussed 

the procedures provided for in section 95-507(a), R.C.M. 1947: 

" * * * That comment makes it clear that if, in 

the judge's opinion and after a hearing if requested by either attorney, a defendant was clear1 

suffering from mental disease at the time of 7i- t e 

crime then the judge can acquit the defendant and 

have him committed to a state institution forthwith. 

The purpose is plain--to avoid a costly trial where 

the mental defect is plain and obvious. * * *" 

The entry of judgment of acquittal by the trial court 

does not mean the relator goes free. The provisions of section 

95-508(a), R.C.M. 1947, procedurally provide for these cases. 

In State v. Taylor, 158 Mont. 323, 335, 491 P.2d 877, this Court 

in interpreting section 95-508(a) said that a person so committed 

would not be released from the state hospital unless the release 

was recommended by the superintendent and the person committed 

could establish at a hearing held before the district judge 
who signed the commitment, beyond a reasonable doubt that he 

would not be dangerous in the forseeable future. We noted in 

Taylor, that the judicial supervision under these circumstances 

$1 is to protect the public as well as the individual by insuring that standards for release are not subverted by allowing 

the final determination to be according to the individual subjective standards of the hospital staff." Under Montana statutes only the trial court, the committing court, has the power 

to discharge or conditionally release. 

Therefore, we direct the trial court to reverse its order 

entered on December 11, 1973 and enter a judgment of acquittal 

on the ground of mental disease or defect excluding responsibility. Thereafter, we direct that commitment proceedings be held 

in accord with the provisions of section 95-507, R.C.M. 1947. 

i Justice 4 

We concur: I