ROBERT J. GOLDEN, petitioner.

WILKINS, C.J. This is a petition by Robert J. Golden in the Probate Court for the county of Hampden for adjudication of recovery of competence. G. L. c. 123, Section 94A, inserted by St. 1947, c. 681, as amended by St. 1959, c. 293. The petitioner was found not guilty of murder by reason of insanity in the Superior Court for the county of Hampden on September 5, 1953. Pursuant to G. L. (Ter. Ed.) c. 123, Section 101, he was ordered committed to the Worcester State Hospital during the term of his natural life.

The Attorney General filed a motion to dismiss the petition on the grounds that (1) the Probate Court does not have jurisdiction to entertain the petition, and (2) the petitioner's rights are governed by G. L. (Ter. Ed.) c. 123, Section 101. The judge took the motion under advisement and heard the petition on the merits. Three competent psychiatrists testified in substance that the petitioner was sane and had been sane during the past seven years. No evidence was offered to the contrary, and the judge found that the petitioner is sane and entitled to be discharged if the Probate Court has jurisdiction. The case is here on report. G. L. (Ter. Ed.) c. 215, Section 13.

The petitioner contends (1) that G. L. (Ter. Ed.) c. 123, Section 101, is unconstitutional, and (2) that G. L. c. 123, Section 94A, provides an alternative method for obtaining the release of one who has been found not guilty of murder by reason of insanity.

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General Laws (Ter. Ed.) c. 123, Section 101, reads: "If a person indicated for murder or manslaughter is acquitted by the jury by reason of insanity, the court shall order him to be committed to a state hospital or to the Bridgewater state hospital during his natural life. The governor, with the advice and consent of the council, may discharge such a person therefrom when he is satisfied after an investigation by the department that such discharge will not cause danger to others."

As we construe Section 101, it is not unconstitutional. Objection is founded upon the undoubted premise that one acquitted by reason of insanity has been found guilty of no crime. Commonwealth v. Rogers, 7 Met. 500, 501. Commonwealth v. McCann, 325 Mass. 510, 515. See Commonwealth v. Curtis, 318 Mass. 584. Contention is then made that this section in murder and manslaughter cases deprives a person, who has been so acquitted, of a judicial remedy for his discharge. This conclusion we are unwilling to reach unless it is completely unavoidable, and we think that it is not. We are referred to Gleason v. West Boylston, 136 Mass. 489, decided in 1884, which held that a town was not liable to the Commonwealth for the support of a person committed to a "lunatic hospital" pursuant to St. 1873, c. 227, a predecessor of Section 101. In the course of the opinion there can be found language, giving a very literal reading to the statute, which not only does not find favor with us today, but is somewhat inconsistent with the opinion of Chief Justice Shaw in Commonwealth v. Rogers, supra.

We are unwilling to hold that release by the Governor and Council is the only method available to the petitioner. We are of opinion that he stands committed subject, if proved sane, to discharge by any other appropriate legal procedure. We are of the further opinion, however, that Section 94A, as amended, [Note 1] is not such a procedure. We do not

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regard a person who has been indicted for murder or manslaughter, and who is acquitted by a jury by reason of insanity, as being a "person adjudicated by any court to be a mentally ill person." The jury decided only that the person lacked criminal responsibility on the date of the killing. Section 94A relates to an adjudication of mental illness as of the time of its making. See, for example, G. L. c. 123, Section 50 et seq.

We are not faced with a present determination whether a petition under G. L. c. 123, Section 91, as amended through St. 1950, c. 684, Section 9, [Note 2] is the proper remedy. See Gentile, petitioner, 339 Mass. 319. If it is not, and no other remedy is found, habeas corpus will lie. G. L. (Ter. Ed.) c. 248, Section 1. See O'Leary, petitioner, 325 Mass. 179, 184.

Petition dismissed.