Omaha daily bee., 1895-11-24
Drexe1
Shoe Co.,
1419 Farnam Street.
SURPRISED LEGAL LIGHTS
Peculiar Decision of the Attorney General
of Nebraska.
REPLIES TO THE GOVERNORS QUERY
hut Insists on Making the BOnrd OF
Public Lands and Build
ings Play Prominent
Part.

LlNCOLN, NOV. ecial)-Attorney
General Churchill has filed remarkable
opinion in the case Of Andrew Debney, the
Nance county wife murderer, under SEN
tence OF death and declared insane since
his conviction. 1t is remarkable in that In
the closing paragraph Of an opinion requested
by Governor Hocomb the attorney general
has brought down upon himself the ridicule
of quite number of legal gentlemen by
bringing the Board of Public Lands and
Buildings into an affair with which it
has nothing whatever to do. It's assump-
tion of any duties in the premises is con-
ceded to be unwarranted and unprecedented
in the history of Nebraska executive busi-
ness. The opinion in full is as follows and
is addressed to Governor Holcomb.
II have carefully examined the transcript
of the proceedings in the case of the state
Of Nebraska against Andrew Debney, in rela-
tion to his insanity, and also have carefully
examined the statutes bearing upon the same.
1t appears from the proceedings That they
have regularly pursued the course pointed out
in the statutes, Criminal Code. sections 553,
554 and 555 being sections 1888, 1854 and
1885 Of the Compiled Statutes of 1895. And
in answer to the question as to what step, If
any, should be taken to have the condemned
incarcerated in the hospital for the insane
during his insanity, pending the execution Of
the death sentence, would say that in my
opinion the statute governing insane persons
contemplates that person convicted of homi-
eide may be confined in ali insane h sp .tal Tor
1t is provided in section 1862 of the statutes,
in proviso: No patient who may be under
charge or conviction of homicide shall be
discharged without an order of the board Of
trustees. From this it would seem to con-
template that person convicted of homicide
may be confined in one of the hospitals for
the insane, and under this statute there is
but one way Of placing an insane person in
such hospital.
HOW IT MAY BE DONE.
"By section 1899 the board of commissioners
is defined, and by section 3340 it is provdad:
Applications for admission to the hospital
must be made in writing in the nature of an
information, verified by affidavit; such infor-
nation must allege that the person in whose
behalf the application is made is believed by
the informant to bs insane and fit subject
for custody, and treatment in the hospital;
that such person is found in the county and
has legal settlement therein, II such is
known to be the fact, and II such settlement
is not in the county, where it is, II known, or
where it is believed to be II the informant
is advised on the subject
"The information required by the section
just quoted in my opinion is jurisdictional.
The next three sections point out the pre-
ceedinss and what the commissioners must
find. These, as it seems to me, are prereq-
uisite to confinement in the hospital.
"It will be noticed that one of the things
required by section 3342 is whether If in
sane, such party is fit subject for treatment
and custody in the hospital, While this man
might be insane, as found by the jury. yet
this commission might find that he was not
fit subject for treatment. In this particular
case, or in this class of cases, l am of the
opinion that the sheriff ought to make the
application in the nature of an information,
verified by his oath, in which he ought to
state, in addition to the charge Of insanity,
that Debney has been charged with the crime
Of murder in the first degree, and had been
tried and convicted, an appeal taken to the
supreme court, where the judgment was af-
frmed; that he was under sentence of death
that a jury had been impaneled under the
provisions of sections 553 and 554 and that
he had been adjudged insane and the sentence
suspended by the order Of court pending such
insanity, and the insanity commissioners, II
they find the prerequisites essential to his
commitment to the hospital, in their war
rant Of commitment should recite these facts,
in addition thereto, In order that the SUPER
lntendent may know that he is convicted of
a homicide and that he cannot be discharged
except upon the order Of the board of
trustees, or instead of the board of trustees,
the Board of Public Lands and Buildings.
II will further say that II he should be
cured in the hospital 1t would be the duty
of the superintendent Of the hospital to in
form the Board Of Public Lands and Build
ings; also the governor and the sheriff, and
then it would be the duty Of the board to
order him delivered over to the sheriff upon
the warrant of the governor for the exscu-
ton of the sentence"
Governor Holcomb has not yet officially
decided what he will do in the premises,
but it is considered likely that he will early
next week order Debney to be taken to the
asylum at Norfolk, and there kept for life,
or until such a time as he might recover