The petitioner is under sentence of death for murder in the first degree imposed by a California superior court and affirmed by the State Supreme Court. People v. Phyle, 28 Cal.2d 671, 171 P.2d 428. The validity of that sentence is not here challenged. But § 1367 of the California Penal Code provides that 'A person cannot be tried, adjudged to punishment, or punished for a public offense, while he is insane.' Thus if petitioner is insane, California law prohibits his execution under the death sentence which he received. The legal questions here presented relate to the procedures adopted by California to determine whether petitioner is sane or insane as a matter of fact.
It is petitioner's contention that, though having been pronounced insane in a judicial proceeding after his conviction, and though he in fact is still insane, he is about to be execute because a state doctor, acting under authority of state statutes, has declared him restored to sanity. The doctor reached his determination without notice or hearings, and without any opportunity on petitioner's part to obtain an orginal court hearing and adjudication of his sanity, or even to obtain a court review of the doctor's conclusion that he is sane. This procedure it is argued constitutes a denial to petitioner of that due process of law guaranteed him by the Fourteenth Amendment.
This contention was urged upon the California Supreme Court in habeas corpus proceedings there instituted. That court entertained and considered the petition, but, with two judges dissenting, denied relief, sustaining the validity of the power of the state's executive agents to follow the prescribed statutory procedures. In re Phyle, 30 Cal.2d 838, 843, 186 P.2d 134. We granted certiorari because of the serious nature of the due process contentions presented in the petition. 333 U.S. 841, 68 S.Ct. 656. Here the California attorney general, while supporting the State Supreme Court's denial of habeas corpus, asserts that California affords petitioner an adequate judicial remedy by way of mandamus, a procedure which has not yet been sought by petitioner.
The California procedure may perhaps be better understood by explaining the application of the controlling California statutes to petitioner's case. While he was in prison awaiting execution of the death sentence a question arose concerning the petitioner's sanity at that time. Section 3701 of the State Penal Code prescribes that if 'there is good reason to believe' that a defendant under sentence of death 'has become insane, the warden must call such fact to the attention of the district attorney.' It is the district attorney's 'duty' immediately to institute proceedings in an appropriate trial court to determine the sanity of the defendant, and the court 'must at once' summon a jury of twelve to 'hear such inquiry.' In petitioner's case this prescribed course was followed, a judicial hearing was held as provided by § 3702, and petitioner was adjudged insane. In accordance with § 3703 the court then ordered that petitioner 'be taken to a state hospital for the insane and be there kept in safe confinement until his reason is restored.' It will be noted that the petitioner obtained a judicial hearing as to sanity only because the warden instituted proceedings after determining that there was 'good reason to believe' that the petitioner was insane. Thus, the opportunity for a person under sentence of death to have a hearing before judge and jury on the question of his sanity depends in the first instance solely on the warden.
After adjudication of insanity the petitioner was taken to a state hospital for the insane in compliance with the trial court's order of commitment. In accordance with § 3704 the warden then suspended the death sentence and delivered certified copies of the court's order to the governor and to the medical superintendent of the state hospital to which petitioner was sent. As § 3704 provides, the superintendent was directed that when petitioner 'recovers his reason,' the superintendent 'must certify that fact' to the governor, who is then required to issue to the warden his warrant appointing a day for the execution of the judgment. The warden then returns the defendant to the State prison pending the execution of the judgment. This course was followed with reference to the petitioner. Eighteen days after his admission to the state hospital the medical superintendent certified to the governor that the petitioner was then sane. He was returned to the custody of the prison warden, and the governor set a new date for his execution.