MARY L. WRIGHT, petitioner.

REARDON, J. In this case the petitioner has applied to the single justice under G. L. c. 123, Section 91, for the discharge of Eddie C. Berry, her father, from the Bridgewater State Hospital. The case comes to us on report by the single justice without decision. On March 23, 1965, Berry was found not guilty of manslaughter by reason of insanity and, pursuant to the requirements of c. 123, Section 101, was committed to Bridgewater State Hospital for life. He is still an inmate of that institution. The Commonwealth has stipulated that Berry is not now insane.

Page 124

The single question in this case is whether a person committed under Section 101 is one who has been "confined as an insane person" within the meaning of Section 91, which says, "Any person may make written application to a justice of the supreme judicial court at any time and in any county, stating that he believes . . . that a person . . . is confined as an insane person . . . and ought not longer to be so confined . . .." Section 101 reads as follows: "If a person indicted 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 [of mental health] that such discharge will not cause danger to others." The Commonwealth argues that a petition brought under Section 91 does not lie and that Berry must be remanded to other remedies.

By the terms of Section 101 the occasion for commitment is a finding of insanity and thus Section 91 would seem to apply. We find no words in Section 101 which would lead us to a contrary conclusion. Indeed, the proximity in c. 123 of Section 91 to Section 101, and the breadth of the language of Section 91 strongly indicate that the Legislature intended it to be a remedy for anyone "confined as an insane person," whether under Section 101 or some other statute.

The question before us now was explicitly left open by this court in Golden, petitioner, 341 Mass. 672, 675. We are disinclined to follow anything in the dictum in the eighty year old decision in Gleason v. West Boylston, 136 Mass. 489, 490, regarding allocation of finances for "lunatic hospitals" which may be contrary to our present holding.

We therefore hold that the petitioner has properly applied for the discharge of Berry under Section 91, and said discharge is to be granted.

So ordered.