143 A.2d 117
No. 4662.Supreme Court of New Hampshire Hillsborough.Argued June 4, 1958.
Decided June 20, 1958.
1. A petition for inquiry under RSA 173:3 II (1) as to whether the petitionee is a sexual psychopath which failed to meet the statutory requirement of “knowledge of the facts” in that neither the petition nor the verification indicated what facts alleged were based upon knowledge and what upon belief was required to be dismissed as invalid.
2. A petition for inquiry under such statute executed by an Assistant Attorney General and joined in by the county solicitor was held to be a substantial compliance with the statute.
3. The Warden of the State Prison charged with safely keeping all convicts committed to his custody until discharged according to law (RSA 622:7) acted within his implied authority in causing a pre-medical examination to be conducted of a prisoner prior to his release under parole from serving the remainder of a sentence for unlawful sexual behavior.
4. The discretionary inquiry under which a sexual psychopath was committed (RSA 173:3 II (1)) was not retrospective merely because evidence was received of the defendant’s sexual deviations which occurred prior to enactment of the Sexual Psychopath Act (RSA ch. 173).
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PETITION, for inquiry under RSA 173:3 II (1) relating to sexual psychopaths. The petition was signed by an Assistant Attorney General and joined in by the Hillsborough county solicitor. The petition related that Mason had, on January 10, 1949, pleaded guilty in Hillsborough County Superior Court to three indictments charging unnatural and lascivious acts and had been serving a sentence in State Prison and was eligible for parole. At the request of the Warden of the prison, he had been examined by three doctors, who reported, “We have formed the unanimous opinion that we are basically dealing with a recidivist sexual offender who is still a potential danger to the Community as a result of his impulsive and irresponsible sexual behavior.”
The defendant filed a motion to dismiss the petition for inquiry alleging that an Assistant Attorney General had no authority under the statute to sign such a petition, that the acts alleged were committed prior to the enactment of RSA ch. 173, and as to Mason the statutes are retrospective in character and unconstitutional. It further alleged that the Warden had no authority to conduct a pre-medical examination and that the defendant was not represented by an attorney before the examining board and that the petition “fails to set forth personal knowledge of complaints and admissions and lacks personal verification.”
On June 17, 1957, a hearing was held on the petition, and on June 20, the defendant was adjudged to be a sexual psychopath and ordered committed. All questions of law raised by the defendant’s exception to the denial of his motion to dismiss the petition were reserved and transferred by Sullivan, J.
Louis C. Wyman, Attorney General, Warren E. Waters, Deputy Attorney General, and Dort S. Bigg, Law Assistant (Mr. Waters orally), for the State.
Alfred Catalfo, Jr. (by brief and orally), for the defendant.
WHEELER, J.
The pertinent provisions of the discretionary section of the Sexual Psychopath Act (RSA 173:3 II (1)) applicable here provide “Whenever facts are presented to the county solicitor which satisfy him that good cause exists for judicial inquiry as to whether a person is a sexual psychopath he may prepare a petition setting forth such facts and requesting a court to conduct an inquiry into the condition of such person.
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The petition shall be executed and verified by a person having knowledge of the facts on which it is based.” (Emphasis supplied).
The State concedes that the petition is not properly verified and the petition must be dismissed for this reason. “This verification did not meet the statutory requirement of `knowledge of the facts,’ because neither the petition nor the verification indicates what facts alleged are based upon knowledge and what upon belief.” In re Craft, 99 N.H. 287, 291. “Unless the facts recited in the petition are limited to those within the affiant’s personal knowledge, they cannot be properly evaluated either by the solicitor in exercising his discretion or by the Court in determining the reasonableness with which that discretion has been exercised.” Id.
We deem it advisable, because uncertainty may exist in future cases of this character, to consider other points raised in the motion to dismiss. In the instant case the petition was signed by an Assistant Attorney General and joined in by the solicitor. Such execution was a substantial compliance with the statute.
The Warden of the State Prison is required to “safely keep” all convicts committed to his custody “until discharged according to law.” RSA 622:7. We are of the view that it was within his implied authority and a reasonable course of conduct to ascertain if this prisoner, prior to release, was safe to be at large.
It was not improper to receive evidence of the defendant’s sexual deviations which occurred prior to the passage of the act. See RSA 173:5 III. “The discretionary inquiry under which the defendant was committed (section 3 II) is not retrospective merely because it considers the past history of the person involved.” In re Moulton, 96 N.H. 370, 374.
The petition is dismissed without prejudice to new proceedings.
Petition dismissed.
All concurred.
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