In Re Dubina

North, J. This is an appeal by Michael Dubina from an order entered in the circuit court of Ionia county denying his release from the Ionia State hospital for the criminal insane. In 1941 Dubina was prosecuted on a charge of having committed murder. He successfully asserted as his defense that at the time of the homicide he was insane. See People v. Dubina, 304 Mich. 363 (145 A. L. R. 886 ). His present commitment under the applicable statute (Act No. 175, chap. 6, § 15c, Pub. Acts 1927, as *485 added by Act No. 259, Pub. Acts 1939 [Comp. Laws Supp. 1940, § 17207-3, Stat. Ann. 1944 Cum. Supp. §28.933 (3)]) was proper. Tbe jurors who on tbe sole defense of insanity acquitted Dubina of the murder charge were instructed by the trial court that they should find him guilty: “unless the jury found him to be insane.” Hence we start with the adjudicated fact that at the time of the homicide Dubina was an insane person. His petition for the writ of habeas corpus in the present proceeding asserts that he is imprisoned illegally, “and that such illegality consists in this, to wits the said Michael Dubina is not now insane.” The answer or return herein alleges “petitioner has been insane up to and until the present time and is still insane.” In this habeas corpus proceeding the petitioner has the burden of establishing his right to be released. 25 Am. Jur. p. 247. 1. Appellant’s first question or assignment of error, in substance, is that the trial court erred in excluding from the testimony the report of a sanity commission given at the original trial. This was the report of three psychiatrists who testified at the trial of the criminal ease that in their opinion Dubina was sane at the time of the homicide and at the time of the trial. The court’s ruling was not erroneous. The issue in this present proceeding is the sanity of appellant at the time of this hearing, not as of the time the original case was tried. In that case the jury’s verdict did not encompass the question of Dubina’s sanity at the time of the murder trial. Further, if appellant desired testimony of like purport at the hearing in this proceeding, the psychiatrists should have been produced so they could have been cross-examined. ■ 2. Appellant’s second question is: “Should expert testimony be received in evidence without first-securing the factual basis on which the expert, opin *486 ion is based?” Assuming’ appellant’s contention that such testimony of factual basis must first be received, the record in the instant case is such that there would be no reversible error. As to each of the State’s expert witnesses the record discloses that the background of his testimony was developed before he gave his opinion that Dubina was suffering from irresistible impulses which he cannot control and that his condition was such that if released he would be a menace to public welfare. • This background consisted of showing an extended period during which each of the State’s expert witnesses frequently observed Dubina’s conduct, that they had interviews with him, observed his reactions, and to some extent the character of Dubina’s conduct during the period he has been committed. One of these experts was the superintendent of the Ionia State hospital where Dubina had been confined, the other was the doctor in the institution who had charge of Dubina’s case for approximately 2 years. An ample basis was disclosed for the testimony of the State’s expert witnesses as to the type and extent of Dubina’s insanity at the time of this hearing. See People v. Sessions, 58 Mich. 594; 1 Gillespie’s Michigan Criminal Law & Procedure, §§ 401, 402. 3. The third question set forth in appellant’s brief reads: “Is there any competent evidence that petitioner was insane at the time of the hearing?” The trial court held there was; and our review of the record discloses an abundance of testimony to sustain such holding. 4. The remaining asserted error relied upon by appellant is disclosed by the following question: “Is petitioner, seeking release after commitment under Act -No. 259, Pub. Acts 1939, required to prove ‘clearly and convincingly’ not only that he is sane at the time of the hearing but also that his *487 going at large will not be dangerous to public safety?” Appellant asserts tbe trial judge took tbe position tbat to be entitled to release appellant must prove “clearly and convincingly” tbat he was sane at tbe time of tbis bearing, and also tbat bis release would not endanger public safety. Tbat is not our understanding of tbis record. Tbe trial judge did not bold tbat because plaintiff bad not “clearly and convincingly” shown be was sane and tbat bis release would not be a menace to public safety, therefore appellant was not entitled to be released. Instead, after a painstaking review of tbe testimony, the court reached and announced tbis conclusion: “Tbe Court finds tbat petitioner now is insane, tbat bis insanity is of tbe compulsive type, tbat bis release would be likely to be harmful to other persons or their property.” We are not in accord with appellant’s contention, as applied to tbis type of case, tbat tbe court should not have been concerned with tbe probabilities of appellant’s release being a menace to others. Tbis, as well as tbe welfare of tbe committed person, is one of tbe objects tbat tbe legislature sought to accomplish by tbe enactment of tbe statute under which appellant was committed. To bold otherwise would be an inept administration of tbe law. Tbe statute in providing for release of a committed person by tbe governor contains these words: ‘ ‘ Tbe governor may, however, discharge such person upon recommendation of tbe commission, based upon an investigation by it and its determination tbat such discharge will not be harmful to other persons or their property.” Act No. 175, chap. 6, § 15c, Pub. Acts 1927, as added by Act No. 259, Pub. *488 Acts 1939 (Comp. Laws Supp. 1940, §17207-3, Stat. Ann. 1944 Cum. Supp. § 28.933 [3]). The following is an acceptable statement of this phase of the law: ‘ ‘ The commitment to an insane asylum of one who has successfully defended a charge of crime by showing insanity usually occurs only in cases of homicide, and as the liberation from the asylum of one who has, while insane, killed1 a fellow being, is apt to be dangerous to the community, the court generally requires a stronger showing as to the restoration to sanity of su,ch a one, in order to obtain his release, than in the case of an alleged incompetent who has never been convicted or charged with a crime.” 19 A. L. R. 719. A proceeding of this type necessitates consideration of the factual background of the one seeking release. Appellant’s insanity is classified as “a compulsive type of insanity,” insanity that is occasioned1 by “emotional compulsion.” Appellant’s status in this particular to some extent appears in the trial court’s opinion from which we quote: “It must be said at the outset that it is undisputed that the petitioner knows the difference between right and wrong. * * * On the other hand it must be said that it is undisputed that petitioner is a sex pervert, that he killed a man with whom he had had homosexual relations. * * * “Dr. Altshuler, one of the psychiatrists who testified for the petitioner, testified in effect that insanity may manifest itself in two spheres — the sphere of reason and the sphere of emotion — or a combination of the two. * • * . * _ “Dr. Robertson and Dr. Cook testified that petitioner is subject to compulsive acts and is therefore insane. * * * These doctors can see indications of emotional instability in the conduct of the petitioner. In this connection the Court could not help *489 noticing petitioner’s acts in the court room, which evidenced his extreme excitability. This emotional instability plus the sex deviation is liable to result in compulsive acts. Both Dr. Bobertson and Dr. Cook state in effect that petitioner now suffers from a compulsive type of insanity.” The trial court reached the conclusion: “That petitioner is insane and that such insanity is of the compulsive type due to his sexual deviation plus his emotional instability.” This finding by the court and the order continuing Dubina in custody are sustained by the record. The order so entered in the circuit court is affirmed. Starr, C. J., and Wiest, Butzel, Bushnell, Sharpe, Boyles, and Beii>, JJ., concurred.