Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1964, No. 610, in case of Commonwealth ex rel. Otis Tate v. Dr. John P. Shovlin, Superintendent.
Otis Tate, appellant, in propria persona.
Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.
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Relator-appellant is a patient at the Farview State Hospital, having been committed there on August 22, 1963, by the Court of Quarter Sessions of Philadelphia
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County following its receipt of a report from a commission consisting of two doctors and a lawyer which it had appointed to investigate the condition of relator. The commission reported that, "Relator was an abnormal character, classified as a constitutional psychopathic inferiority and sociopathic behavior, with hostility and aggressiveness, and there is undoubtedly risk or danger that he will injure others." Relator's commitment was pursuant to section 344 of The Mental Health Act of June 12, 1951, P. L. 533, as amended, 50 P.S. § 1224. He had been charged with having committed the crimes of larceny, burglary, receiving stolen goods, and carrying concealed deadly weapons but had not been brought to trial because of his mental condition.
On September 29, 1964, more than a year after his commitment, relator filed a petition for a writ of habeas corpus in the Court of Common Pleas of Philadelphia County. A rule was granted thereon directed to Dr. John P. Shovlin, Superintendent of the Farview State Hospital, which was answered by James C. Crumlish, Jr., District Attorney of Philadelphia County, with an affidavit of Dr. Shovlin attached thereto, the substance of which alleged that relator was at that time possessed of criminal tendencies and required additional hospitalization at Farview Hospital and alleged that relator had not requested an examination by an independent psychiatrist as authorized by section 801 of the Act of 1951, as amended by the Act of August 14, 1963, P. L. 895, § 6, 50 P.S. § 1481. Relator's petition was dismissed without a hearing and without an opinion.
Relator's petition recited that it was filed in accordance with section 802 of the Act of 1951. That section was specifically repealed by section 7 of the Act of August 14, 1963, P. L. 895, 50 P.S. § 1482, prior to the time his petition was filed. However, section 3 of the
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Act of 1963 gives the right to petition for a writ of habeas corpus in accordance with the general habeas corpus act, the Act of May 25, 1951, P. L. 415, 12 P.S. § 1901, and section 4 of the Act of 1963 gives a right to file a petition for discharge with the committing court or the common pleas court of the county wherein the petitioner is confined. Since relator's petition was not filed in either the common pleas court of the county of confinement or in the committing court, the Quarter Sessions Court of Philadelphia County, we are constrained to conclude it should be considered as a petition for a writ of habeas corpus under section 3 of the Act of 1963, and in accordance with the general habeas corpus act. Section 5 of that act provides for a hearing,*fn1 and we have held this to be mandatory unless the petition is not self-sustaining and fails to make out a case entitling petitioner to such a writ. Commonwealth ex rel. Forsythe v. Myers, 200 Pa. Superior Ct. 636, 189 A.2d 920 (1963); Commonwealth ex rel. Lockhart v. Myers, 193 Pa. Superior Ct. 531, 165 A.2d 400 (1960), cert. denied, 368 U.S. 860, 82 S. Ct. 102, 7 L. Ed. 2d 57.
Relator complains as follows: (1) he is being held a prisoner in violation of his constitutional rights guaranteed by the Sixth Amendment of the United States Constitution; (2) since his confinement he has not been examined by persons ...