The opinion
NIX, Presiding Judge
(dissenting).
I respectfully disagree with my associates ■on both cases wherein petitioner seeks a 'Writ of Prohibition. Since the Statute is silent on the question raised herein, it constitutes a difference of opinion in theory :and not in law. The opinion formed by your writer is motivated by my conviction that a preliminary hearing afforded an insane person would be hollow mockery, and could only result in a frivolous nullity. In the instant case, the defendant was charged by Information with the crime of Murder and before a preliminary hearing was had, the Judge of the District Court having jurisdiction as prescribed by Title 43A § 60, issued an order sending defendant to the Eastern State Mental Hospital for a 90 day observation period. The officials of the Hospital reported that the defendant was unable to assist in the preparation of his defense because of his present mental illness. Defendant was then returned to the custody of the Sheriff of Payne County. What disposition is now to be made of the prisoner ? The Statute is silent. The Legislature should give this immediate attention. It would not be practical to keep an insane person in custody of the Sheriff for an indefinite period of time. The District Court cannot acquire Jurisdiction for any purpose other than to send him off for observation, until he has been bound over at a preliminary hearing. Yet it would be repugnant to good jurisprudence to hold a preliminary hearing for an insane person. Until a formula is prescribed by the Legislature, it appears to your writer that the Judge should renew his order for observation upon written report from the officials of the Hospital every 90 days until the defendant is declared mentally competent to assist in the preparation of his defense.
If defendant is not satisfied with this procedure, he always has available the Writ of Habeas Corpus wherein testimony could be taken as to whether or not he is illegally confined.
In the case at bar the District Court had no Jurisdiction to proceed with a jury trial until the defendant was bound over from a preliminary hearing, and a preliminary hearing could not be held because of the present insanity of the defendant. I would have to conclude that both Writs should have been granted.
The Legislature should be advised at an early date of this unfilled gap in the law.