Before WILBUR K. MILLER, BAZELON and BASTIAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1960.CDC.108
Winfred OVERHOLSER, Superintendent, St. Elizabeths
Petition for Rehearing En Banc Denied Sept. 19, 1960.
In October, 1958, Robert Stanley Russell was committed to St. Elizabeths Hospital, a mental institution, under § 24-301(d), D.C.Code (1951, as amended August 9, 1955), after a jury before which he was tried on two criminal charges had found him not guilty by reason of insanity.
By a petition for a writ of habeas corpus filed January 12, 1960, he sought to establish his eligibility for either unconditional or conditional release under § 24-301. *fn1
He alleged he suffers from a nervous disorder for which he is being given a mild tranquilizer and psychotherapy, both of which could be administered outside the hospital. He stated he "believes that he has now so recovered from his abnormal mental condition as to be considered of sound mind, competent, and not dangerous to himself or others in the reasonable future and is therefore entitled to his unconditional or conditional release . . .." He also charged the respondent with being arbitrary and capricious in not so certifying. In the Superintendent's return and answer, which was filed January 15, 1960, he denied being arbitrary or capricious, and said he and skilled members of his staff are of the opinion that the petitioner "has not recovered from his abnormal mental condition and is in need of further care and treatment in a mental hospital." The respondent said he was unable to certify "that the petitioner will not . . . be dangerous to himself or others in the reasonable future."
After the hearing on January 25, 1960, the District Court found, inter alia, as follows:
"9. That petitioner was suffering from a nervous disorder, and as a result of treatment at St. Elizabeth's Hospital is no longer mentally ill.
"10. The Court finds that petitioner will not, in the reasonable future, be dangerous to himself or others, that is, write any checks without sufficient funds. [The only testimony adduced as to the possibility of petitioner being dangerous to himself and to others was to the effect that, if released, petitioner might revert to writing a bad check as he had done in the past.]"
The court concluded "That petitioner is not dangerous to himself nor to others" and "should be unconditionally released from St. Elizabeth's Hospital." Accordingly, an order discharging Russell from custody was entered January 25, 1960, to become effective 24 hours later. Within that time the Superintendent appealed to this court, whereupon we stayed the effectiveness of the District Court judgment pending our further order.
On January 27, 1960, the Superintendent filed with us a motion for summary reversal or stay pending appeal, which included a memorandum in support thereof. An opposing memorandum has been filed and oral argument has been heard.
The question before us is whether the record supports the action of the District Court in granting unconditional release. Section 24-301(e) provides that a person who has been committed to a hospital for the mentally ill because he was acquitted of a criminal offense solely on the ground that he was insane at the time of its commission, may be released unconditionally by the District Court if the superintendent of such hospital certifies (1) that such person has recovered his sanity, (2) that, in the opinion of the superintendent, such person will not in the reasonable future be ...