[79 Ariz. 315] Houston & Nihan, Tucson, for appellant.
Robert Morrison, Atty. Gen., Norman H. Whiting, Asst. Atty. Gen., for appellee.
LA PRADE, Chief Justice.
The appeal herein is from a judgment finding the defendant-appellant guilty of murder in the first degree with sentence of life imprisonment imposed.
Simultaneously with the filing of the information charging the offense the county attorney filed a motion, under Section 44-1701, A.C.A.1939, seeking an order for a mental examination of the defendant to determine whether he was then insane, or mentally defective to the extent that he was then unable to understand the proceedings against him or to assist counsel in his defense. The motion was granted and the order made. After a hearing on this issue the court found defendant to be unable to understand the nature of the proceedings against him and ordered defendant committed to Arizona State Hospital 'until the proper officer of said hospital is of the opinion that defendant is able to understand the proceedings against him and to assist counsel in his defense'. Three months later the defendant as a patient was discharged from the hospital as being able to understand the proceedings against him and to assist counsel in his defense. Whereupon the county attorney, following the procedure of Section 44-1701, supra, again requested the court 'that another hearing be held to determine the defendant's mental condition'. The order was forthcoming and the court appointed experts to examine defendant. A hearing was conducted by the court at the conclusion of which the court ordered that defendant 'be committed to the State Hospital for further treatment'.
Eleven months later there was again filed with the clerk of court a new certificate of discharge releasing defendant from the State Hospital. The county attorney did not request a new court hearing to determine defendant's then mental condition after commitment, and no hearing was held by the court under Section 44-1701, supra, and no findings of fact or judicial determination made concerning the defendant's then mental condition. Nevertheless the court ordered the case set down for trial which resulted in the verdict and judgment under consideration.
By appropriate assignments of error defendant has challenged the authority of the court to put him to trial without there first having been a legal determination adjudging him to be sane.
It is to be noted that the rule contemplates that under certain circumstances an examination of defendant's mental condition shall be undertaken before trial to [79 Ariz. 316] determine whether a defendant shall be put to trial. The rule, Section 44-1701, supra, specifically provides that if on such examination the court
'* * * decides that the defendant through insanity or mental deficiency is not able to understand the proceedings or to assist in his defense it shall take proper steps to have the defendant committed to the proper institution. * * *'
So much of this rule was complied with, resulting in the commitment referred to. The rule then provides that
'* * * If thereafter the proper officer of such institution is of the opinion that the defendant is able to understand the proceedings and to assist in his defense, he shall report this fact to the court which conducted the hearing. * * *'
This procedure was followed by the officer of the State Hospital in his report. The rule then provides that
'* * * If the officer so reports, the court shall fix a time for a hearing to determine whether the defendant is
able to understand the proceedings and to assist in his defense. This hearing shall be conducted in all respects like the original hearing to determine defendant's mental condition. If after this hearing the court decides that the defendant is able to understand the proceedings against him and to assist in his defense it shall proceed with the trial. If, however, it decides that the defendant is still not able to understand the proceedings against him or to assist in his defense it shall recommit him to the proper institution.' (Emphasis supplied.)
No attempt was made to comply with this portion of the rule. The county attorney and the court both took cognizance of the rule and applied it at the time the defendant was first released by the hospital authorities. Why they thought it was not necessary to follow this outlined procedure at the time the defendant ...