#### In the Matter of CLIFFORD LAFAYETTE TATE.

(Filed 16 December, 1953.)

1. Insane Persons § 1—

G.S. Ch. 35 deals only with inebriates and mental incompetents in matters of a civil nature; G.S. Ch. 122, Art. 6, deals exclusively with mentally disordered criminals.

2. Insane Persons § 17—

A person committed to a State Hospital under the provisions of G.S. 122-84 because of mental incapacity to answer to an indictment in the Superior Court remains in the technical custody of that court and upon his recovery must be returned to it for trial, G.S. 122-87, and may be discharged only by a judge of the Superior Court, either at term or by writ of *habeas corpus,*G.S. 122-86.

3. Same—

A person accused of crime who is committed to a State Hospital under the provisions of G.S. 122-84 may not procure his release in a proceeding instituted under G.S. 35-4.

Appeal by respondent guardian from *Rudisill,*JJune Term, 1953, Guileoed.

Petition under G.S. 35-4 for adjudication of sanity and release from the State Hospital for the Insane at Raleigh, N. C.

In June 1928, petitioner was put on trial in the Superior Court of Guilford County under a bill of indictment for a felonious assault. He pleaded that he was mentally incapable of pleading to the bill of indictment or preparing his defense. The jury so found. It was thereupon duly adjudged that the petitioner was insane and it was ordered that he be confined in the State Hospital “under and by virtue of the provisions of Section 6236 of the Consolidated Statutes of North Carolina” (now G.S. 122-83).

On 14 October 1953 counsel for petitioner filed a petition before the clerk of the Superior Court of Guilford County. The petition was filed under the provisions of G.S. 35-4, and it is alleged therein: “That on the . day of ., 19., your petitioner was adjudged incompetent to handle his affairs, and since that time has been confined to the State Hospital in Raleigh . . He prayed that his guardian, the re*95spondent Kate Tate Bain, be made a party and tbat tbe court summon a jury and make inquiry as to bis present sanity as provided by G.S. 35-4.

Tbe guardian filed answer and an amended answer in wbicb sbe alleges tbat petitioner was committed to tbe insane asylum in a criminal cause in wbicb be pleaded want of mental capacity to plead to tbe indictment, tbat be was committed under tbe provisions of G.S. 122-84, and tbat tbe court is without jurisdiction in tbis proceeding to order tbe release of tbe petitioner. Sbe moved tbat tbe petition be dismissed.

Upon bearing tbe motion to dismiss, tbe clerk found as a fact tbat petitioner was confined under G.S. 122-84, as alleged; concluded tbat petitioner, notwithstanding tbe manner of bis confinement, is entitled to seek bis release under G.S. 35-4; and entered bis order denying tbe motion to dismiss. Tbe guardian excepted and appealed to tbe judge of tbe Superior Court.

At tbe bearing in tbe court below, tbe judge made full findings of fact as here summarized, affirmed tbe order of tbe clerk, and remanded tbe proceeding for bearing upon tbe merits under G.S. 35-4. Tbe guardian excepted and appealed.

*Moseley & Holt for respondent appellant.*

*~W. Brantley Womble and Thomas Turner for petitioner appellee.*

Barnhill, J.

Petitioner stood indicted, charged with tbe commission of a felony. Through counsel be pleaded tbat be was mentally incapable of pleading to tbe indictment or preparing bis defense. Thereupon tbe court proceeded to ascertain tbe merits of tbe plea as provided in G.S. 122-84 and committed petitioner to tbe State Hospital at Ealeigb. May he now procure bis release in a proceeding instituted under G.S. 35-4? We are constrained to answer in tbe negative.

It is needless for us to enter into a lengthy discussion of tbe difference in tbe scope, purpose, and intent of G.S. Cb. 35 on tbe one band, and G.S. Cb. 122 on tbe other, or to undertake to reconcile apparently conflicting and inconsistent provisions therein. Suffice it to say tbat G.S. Cb. 35 deals only with inebriates and mental incompetents in matters of a civil nature. Proceedings may be bad thereunder to admit inebriates and mental incompetents to a State Hospital for treatment; for tbe appointment of guardians; for tbe discharge after commitment, and tbe like. There is no provision therein for tbe commitment or discharge of a person who stands indicted, charged with tbe commission of a felony, who pleads tbat be is incapable for tbe want of understanding to plead to tbe bill of indictment or prepare bis defense.

Conversely, G.S. Cb. 122, Art. 6, deals exclusively with mentally disordered criminals. It provides tbe procedure for (1) tbe ascertainment *96of mental incapacity; (2) tbe commitment, and (3) tbe discharge of mental incompetents convicted of or charged with the commission of a felony.

“All persons who may hereafter commit crime while mentally disordered, and all persons, who, being charged with crime, are adjudged to be mentally disordered at the time of their arraignment, and for that reason cannot be put on trial for the crimes alleged against them, shall be sent by the court before whom they are or may he arraigned for trial, when it shall be ascertained by due course of law that such person is mentally disordered and cannot plead, to the State Hospital at Raleigh ... or to the State Hospital at Goldsboro . . .”

Under the terms of G.S. 122-84, “Any person accused of the crime of murder ... or other crime” who “shall be found by the court to be without sufficient mental capacity to undertake his defense or to receive sentence after conviction, the court . . . shall detain such person in custody until an inquisition shall be had in regard to his mental condition . . .” If it is found that he is mentally incapable, the judge shall commit him as provided in sec. 122-84, “to be kept in custody therein (State Hospital) for treatment and care as herein provided. Such person shall be kept therein . . . until restored to his right mind . . .”

“When a person committed to a State Hospital under this section as unable to plead shall have been reported by the hospital to the court having jurisdiction as being mentally able- to stand trial and plead, the said patient shall be returned to the court to stand trial as provided in sec. 122-87.”

Then in sec. 122-87, it is provided that “Whenever a person confined in any hospital for the mentally disordered, and against whom an indictment for crime is pending, has recovered or has been restored to normal health and sanity, the superintendent of such hospital shall notify the clerk of the court of the county from which said person was sent, and the clerk will place the case against said person upon the docket of the superior court or criminal court of that county for trial.” This section contains other provisions not material here.

That the Legislature intended that the criminal insane and those who may plead insanity or want of understanding to plead to a bill of indictment shall be committed to and discharged from a mental institution of the State only by a judge of the Superior Court is supported by other sections of this chapter.

“When it shall appear that any mentally disordered person under commitment to and confined in a hospital for the mentally disordered *but not charged with a crime or under sentence*shall have shown improvement in his mental condition . . .” he may be released on probation by the superintendent. G.S. 122-67. See also G.S. 122-84, 86, 90.

*97Tims it appears that tbe commitment to a State hospital of a person who pleads want of mental capacity to answer to an indictment does not end tbe jurisdiction of tbe Superior Court in wbicb tbe indictment is pending. Tbe petitioner remains in tbe technical custody of that court and upon bis recovery must be returned to it for trial. He may, however, be beard under a writ of *habeas corpus.*G.S. 122-86. See also G.S. 122-87.

Tbe provisions of G.S. Cb. 122, Art. 6, in no uncertain terms, prescribe tbe method for obtaining tbe discharge of a person accused of a felony and who has been committed to a State hospital under an inquisition bottomed on bis plea that be was mentally incapable of pleading to tbe bill of indictment or preparing bis defense. It does not include a proceeding under G.S. 35-4.

Tbe amendments — amounting to a virtual rewriting — of our statutes relating to tbe criminal insane contained in cb. 952, S.L. 1945, render our former decisions bearing on tbe question here presented of doubtful value. But see *S. v. Pritchett,*106 N.C. 667, and 44 C.J.S. 285, sec. 129.

This record discloses that tbe petitioner has been confined in tbe State hospital since 1928. Apparently no action has been taken by tbe superintendent, G.S. 122-87, or tbe court officials to ascertain bis present mental condition so that be may be put on trial if now sane. *We*reverse tbe order entered and at the same time direct that tbe original cause be reinstated on tbe criminal trial docket for tbe attention of tbe solicitor and trial judge. In this connection we may note that tbe judge has tbe authority to direct tbe hospital officials to give temporary custody of tbe petitioner to tbe sheriff of tbe county to tbe end that be may produce tbe petitioner in court for further inquiry as to bis present mental condition.

Reversed.