Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
[40 NJSuper Page 292] On this motion the prosecutor seeks leave to appeal from an interlocutory order of the trial court
granting a hearing to the defendant under N.J.S. 2 A:163-2 for the purpose of determining in advance of trial whether he was legally insane at the time of commission of certain alleged crimes.
It appears that in January 1955 defendant Stern was arrested and charged with a number of crimes. His arraignment in the magistrate's court occurred on January 24.
A few days later, while he was confined in the Essex County Jail, his wife applied to the assignment judge of the county to have him declared insane and committed. The application was supported by certificates of two physicians, as required by N.J.S.A. 30:4-29.
The matter was presented to Judge Speakman on January 31. At that time the prosecutor advised that a phychiatrist had examined Stern on behalf of the State and that on the basis of the report received he would offer no objection. Thereupon, on February 1, 1955, an order was signed adjudging the prisoner insane as of that date. In addition, it directed his removal from the county jail and commitment to the New Jersey Hospital for the Insane, "there to remain * * * until restored to reason or removed or discharged according to law * * *." The prosecutor's approval was endorsed thereon.
The mandate of the court was complied with and Stern is still confined to the Hospital.
In June 1955 the Essex County grand jury returned five indictments covering the alleged offenses for which defendant was arrested in January.
On November 21, 1955 an application was made on Stern's behalf under N.J.S. 2 A:163-2 for a hearing to determine whether or not he was insane at the time of commission of the offenses. In support thereof medical proof in affidavit form was submitted showing that presently he is confined to the criminal part of the hospital and that transfer to the civil branch cannot be accomplished so long as the indictments are pending. According to the neuropsychiatrist who supplied the proof, treatment and cure are impeded in the
existing environment and transfer to the civil part would have a beneficial effect on the progress of his case. The purpose of appealing to the trial court for a hearing at this time was not to secure a discharge from the institution but to aid in the treatment of the mental disorder.
After consideration of the medical proofs and the argument of the prosecutor in opposition, the court directed that "an inquiry shall be instituted and proofs taken * * * as to the mental condition of defendant Marcel Barry Stern at the times the offenses charged against him in the above indictments are alleged to have been committed."
In seeking leave to appeal from the order the prosecutor contends that since, at the time of the original commitment proceeding, defendant sought only a finding that he was then insane and not amenable to trial, he forever lost any right or opportunity to seek a pretrial determination under N.J.S. 2 A:163-2 of the issue of insanity when the alleged criminal acts were performed. And it is urged also that such failure had the effect of exhausting the authority of the court, and that the ...