In re Smith , 155 Mont. 237 ( 1970 )

MEMO OPINION

PER CURIAM:

George R. Smith, resident of the state hospital at Warm Springs, petitions this Court for a writ of mandate to secure his release from the institution and restore to him the assets of his guardianship estate.

While petitioner states that an affidavit of competency was given him in 1958 this Court has no record of such and when we investigated this assertion at the hospital previously we found that no such written report stating that petitioner was in satisfactory mental condition to be discharged had been made by the hospital medical staff. We fully discussed the necessity of this report in our opinion filed June 17, 1965, now appearing in 145 Mont. 567, 403 P.2d 604, and again in one filed November 2, 1967, appearing in 150 Mont. 201, 435 P.2d 373, in both instances the same relief was sought. In 1969 at the request of Smith we referred the matter to the Montana Defender Project and they investigated his contentions and examined the hospital records and advised us that the medical staff would not report that Smith was in satisfactory mental condition to be discharged.

Since a criminal charge was involved in the original commitment there are other provisions of law which enter into the picture but no necessity exists to discuss them since the written report is primarily necessary.

The relief requested is denied.