The opinion
MR. CHIEF JUSTICE ADAIR:
(specially concurring).
“A person cannot be tried, adjudged to punishment, or punished for a public offense while he is insane.” R. C. M. 1947, section 94-9301. So says the law.
Mack Kitchens is an insane person.
On November 6, 1950, the Superior Court in and for the County and City of San Francisco in the State of California, found and adjudged that Kitchens “is dangerously mentally ill,” and “is an insane person” and ordered that he be committed to the State Hospital at Stockton, California.
On December 2, 1952, by judgment that day made, filed and entered in the United States District Court for the District of Montana, Butte Division, United States District Judge W. D. Murray presiding, found that Mack Kitchens “is presently insane” and that he “is so mentally incompetent as to be unable to understand the proceedings against him or to properly assist in his own defense ’ ’ whereupon it adjudged that Kitchens “is mentally incompetent,” and it ordered his commitment to the Medical Center for Federal Prisoners, located at Springfield, Missouri.
On May 12, 1953, by order and judgment that day made, filed and entered in the district court of the United States for the Western District of Missouri, Western Division, United States District Judge Albert A. Ridge presiding, in denying Kitchens’ petition for a writ of habeas corpus said:
“Petitioner, concededly permanently insane, is confined in the United States Medical Center for Federal Prisoners at Springfield, Missouri * * *.
“Petitioner has been in the custody of respondent [Dr. Ivan W. Steele, Warden, United States Medical Center, Springfield, Missouri] for a period of sis months. It now appears that he probably never will be mentally capable of standing trial on the charges made against him. The Warden of the Medical Center is endeavoring to have the State of California take jur *345 isdiction over petitioner. To date, the Warden’s efforts in that behalf have been in vain. Unless petitioner alleges and establishes by competent evidence before this Court that the state of his domicile, California or Montana, will assume custody of him he is not entitled to presently be released from the Medical Center, so long as the charges made against him are not disposed of according to law, i. e. by a trial on the merits thereof or by way of dismissal as he coneededly is insane. ” See Kitchens v. Steele, D. C., 112 F. Supp. 383, 384 .
On April 21,1954, by order and judgment that day made, filed ■and entered in the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, District Judge C. F. Holt presiding, found, ordered and adjudged:
“That the said Mack Kitchens is insane and is so far disordered in his mind as to endanger his health, person and property and the personal safety of citizens and residents of the •county and it appearing that commitment to a hospital for mental disease is necessary for safekeeping and treatment, and it appearing that such person is eligible for care or treatment by Veterans’ Administration of the United States Government;
“Now, Therefore, It Is Hereby Ordered that the said Mack Kitchens, an insane person, be committed to and confined to the Veterans’ Hospital at Sheridan, Wyoming, pursuant to the provision of Section 91-4818, Revised Codes of the State of Montana, 1947, and that any transportation costs incurred in connection with such commitment be paid by the Veterans’ Administration.”
Although four separate courts have found and adjudged Kitchens insane and have in each case ordered him committed to a hospital or medical center there to receive medical care and treatment for his illness and mental disorder, which is of a paranoid type, it being apparent that he has long suffered from schizophrenic reaction, yet at no time has any of said committing courts made any order or adjudication that Kitchens has been restored to sanity.
*346 While the law plainly says that a person so afflicted “cannot be tried * * * for [an] * * * offense”, section 94-9301, yet Kitchens was tried in the district court of Yellowstone County.
Although the law says that a person so afflicted “cannot be * * * adjudged to punishment”, section 94-9301, still Kitchens was so adjudged in the district court of Yellowstone County.
Finally the law says that a person so afflicted “cannot be * * * punished for a public offense”, section 94-9301, yet Kitchens, was punished and he continues to be punished for an “offense while he is insane.” section 94-9301.
Kitchens was born in the year 1927.
While serving as an enlisted man in the United States Navy he met with an accident wherein he suffered painful injuries including serious injuries to his head which left him mentally upset and disorganized to such an extent that after examination before a twelve-man board he was ordered discharged from the Navy as being unsuitable and unfit for further duty.
Next Kitchens voluntarily enlisted in the United States Air Force but again he was discharged from that branch of the armed forces as being unfit for further military service.
As a person who is eligible for care and treatment by the Veterans’ Administration or other agency of the United States Government, Kitchens should be released from the state prison to which he was illegally committed and delivered into the custody of the sheriff of Cascade County, Montana, to the end that the district court of Cascade County may forthwith inquire into the mental condition of Kitchens, said court having continuing jurisdiction in his case under the express provisions of R. C. M. 1947, section 91-4818.
Kitchens should not longer be incarcerated in the state prison nor should he be confined in the Yellowstone County jail at Billings for months awaiting a second trial on a charge of having committed a public offense while insane for which he cannot lawfully “be tried, adjudged to punishment, or punished”. Section 94-9301.
*347 He is a sick man. He needs medical treatment in a hospital, —-not punishment in a penal institution.
MR. JUSTICE BOTTOMLY:
I concur in the foregoing specially concurring opinion of Mr. Chief Justice Adair.