John I. Purtle, Justice.
On February 22, 1980, Henrietta Holbert, as mother and next friend of Johnny Stover, filed a petition for a writ of habeas corpus in the Chancery Court of Pulaski County, Arkansas. She alleged her son was illegally confined in the Arkansas State Hospital in Little Rock, Arkansas. The chancellor ruled petitioner was being legally held pursuant to an order of commitment by the Franklin County Circuit Court under Ark. Stat. Ann. § 41-612 (Repl. 1977).
On appeal, petitioner urges (1) that he could not be held for more than one year under the statute used to commit him if he was mentally unfit to stand trial and (2) that the circuit court had no authority to acquit him by reasons of insanity as long as he remained incompetent to stand trial. We agree with the first argument but disagree on the second.
On December 21, 1977, petitioner was charged with first degree murder and was committed to the state hospital for examination on the same date. On January 17, 1978, the hospital filed a report stating petitioner was suffering from Korsakov’s Psychosis, and he did not have the mental capacity to understand the proceedings against him or to effectively assist in his defense. Basing its decision upon the report of the hospital, the Franklin County Circuit Court committed petitioner to the state hospital until he was cured or was restored to reason. This order was entered on July 7, 1978.
On September 21, 1979, petitioner’s attorney filed a motion for rehearing on sanity. The motion stated that appellant’s condition at the time of the alleged offense had never been determined by the court. The motion sought a speedy disposition of the case, and a hearing was held on October 5, 1979- The Court determined (1) petitioner to be not guilty by reason of mental disease or defect and (2) petitioner presented a danger to himself and others. A written order to this effect was filed on December 12, 1979, and petitioner was committed to the custody of the director of the state hospital pursuant to Ark. Stat. Ann. § 41-612.
On February 22, 1980, a petition for habeas corpus was filed in the Pulaski County Chancery Court seeking the release of petitioner. The petition challenged the authority of the Franklin County Circuit Court to acquit him while he was still suffering from mental disease, and it was argued that the criminal statutes could not be used to confine him to the state hospital for a period in excess of one year.
The chancellor entered an order on March 19, 1980, which concluded that the Franklin County Circuit Court had jurisdiction of the person and subject matter and found the order of the circuit court to be proper pursuant to Ark. Stat. Ann. § 41-609 (Repl. 1977). The chancellor further held that the constitutionality of the committing statute has not been challenged and there were no other reasons presented pursuant to Ark. Stat. Ann. § 34-1733 (Repl. 1962) which required release of petitioner.
There is no dispute that the Pulaski County Chancery Court had jurisdiction over the parties and the subject matter. The rule is well established that upon petition for habeas corpus the court only determines whether the commitment is regular on its face and whether the issuing court had jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W. 2d 201 (1961).
We now consider whether the Pulaski Chancery Court properly considered the Franklin Circuit Court commitment of December 12, 1979. Appellant-petitioner argues the circuit court is void on its face and relies upon Ark. Stat. Ann. § 41-603 (Repl. 1977), which states:
No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.
It is appellant’s contention that the acquittal by the Franklin County Circuit Court amounted to a trial. We agree that the statute prevented the court from having a trial for the appellant so long as his disability existed. We think it is important to concurrently consider Ark. Stat. Ann. § 41-609 (Repl. 1977), which states:
On the basis of the report filed pursuant to § 605 (§ 41-605), the court may, after a hearing if a hearing is requested, enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.
The Commentary following this statute indicates that in cases of extreme mental disease or defect, where the lack of responsibility on the part of the defendant is clear, a trial can be avoided and defendant can be hospitalized under the provisions of Ark. Stat. Ann. § 41-612.
We are also concerned with the provisions of Ark. Stat. Ann. § 41-612 which in substance holds that if a defendant is acquitted on the grounds of mental disease or defect and the court finds that he presents a risk of danger to himself or the person or property of others, the court shall order the defendant committed to the custody of the director of the state hospital to be placed in an appropriate institution. If a person is committed pursuant to the provisions of § 41-612, which does not define the duration of the commitment, his rights to application for release are governed by Ark. Stat. Ann. § 41-613 (Repl. 1977). Application for release or discharge may be presented no sooner than 90 days from the date of the commitment, and subsequent applications for discharge may be made after the expiration of one year from disposition of the previous application. Therefore, neither § 41-612 nor § 41-613 sets a limit upon the time a person may be held in the state hospital. Both of these statutes place the decisional process in the hands of the court instituting the commitment. To this point in the proceedings, the statutes have been followed.
The constitutionality of the commitment statute is not challenged; however, it it argued that it is unconstitutional as applied to this appellant. For this reason it was proper for the chancellor to consider the prior court order.
The motion to determine the sanity of appellant was presented on his behalf to the trial court. The motion seemed to request a determination of appellant’s capacity to stand trial. The court, acting upon the motion with evidence of appellant’s mental condition, found him not guilty by reason of lack of mental capacity at the time of the offense. The court acquitted him and ordered commitment pursuant to Ark. Stat. Ann. § 41-612.
Appellant argues vigorously that Ark. Stat. Ann. §41-607 (2) (d) (Repl. 1977) requires the director of the state hospital to institute civil commitment proceedings against a party who is unfit to proceed to trial if he presents a danger to himself or the person or property of others. He also argues that such commitment cannot exceed a period of one year. This statute concerns an accused who is being held on a pending charge but is “unfit to proceed.” In the present case, the appellant is no longer being held in such a status.
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John I. Purtle, Justice.
On February 22, 1980, Henrietta Holbert, as mother and next friend of Johnny Stover, filed a petition for a writ of habeas corpus in the Chancery Court of Pulaski County, Arkansas. She alleged her son was illegally confined in the Arkansas State Hospital in Little Rock, Arkansas. The chancellor ruled petitioner was being legally held pursuant to an order of commitment by the Franklin County Circuit Court under Ark. Stat. Ann. § 41-612 (Repl. 1977).
On appeal, petitioner urges (1) that he could not be held for more than one year under the statute used to commit him if he was mentally unfit to stand trial and (2) that the circuit court had no authority to acquit him by reasons of insanity as long as he remained incompetent to stand trial. We agree with the first argument but disagree on the second.
On December 21, 1977, petitioner was charged with first degree murder and was committed to the state hospital for examination on the same date. On January 17, 1978, the hospital filed a report stating petitioner was suffering from Korsakov’s Psychosis, and he did not have the mental capacity to understand the proceedings against him or to effectively assist in his defense. Basing its decision upon the report of the hospital, the Franklin County Circuit Court committed petitioner to the state hospital until he was cured or was restored to reason. This order was entered on July 7, 1978.
On September 21, 1979, petitioner’s attorney filed a motion for rehearing on sanity. The motion stated that appellant’s condition at the time of the alleged offense had never been determined by the court. The motion sought a speedy disposition of the case, and a hearing was held on October 5, 1979- The Court determined (1) petitioner to be not guilty by reason of mental disease or defect and (2) petitioner presented a danger to himself and others. A written order to this effect was filed on December 12, 1979, and petitioner was committed to the custody of the director of the state hospital pursuant to Ark. Stat. Ann. § 41-612.
On February 22, 1980, a petition for habeas corpus was filed in the Pulaski County Chancery Court seeking the release of petitioner. The petition challenged the authority of the Franklin County Circuit Court to acquit him while he was still suffering from mental disease, and it was argued that the criminal statutes could not be used to confine him to the state hospital for a period in excess of one year.
The chancellor entered an order on March 19, 1980, which concluded that the Franklin County Circuit Court had jurisdiction of the person and subject matter and found the order of the circuit court to be proper pursuant to Ark. Stat. Ann. § 41-609 (Repl. 1977). The chancellor further held that the constitutionality of the committing statute has not been challenged and there were no other reasons presented pursuant to Ark. Stat. Ann. § 34-1733 (Repl. 1962) which required release of petitioner.
There is no dispute that the Pulaski County Chancery Court had jurisdiction over the parties and the subject matter. The rule is well established that upon petition for habeas corpus the court only determines whether the commitment is regular on its face and whether the issuing court had jurisdiction. Mitchell v. State, 233 Ark. 578, 346 S.W. 2d 201 (1961).
We now consider whether the Pulaski Chancery Court properly considered the Franklin Circuit Court commitment of December 12, 1979. Appellant-petitioner argues the circuit court is void on its face and relies upon Ark. Stat. Ann. § 41-603 (Repl. 1977), which states:
No person who, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or to assist effectively in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.
It is appellant’s contention that the acquittal by the Franklin County Circuit Court amounted to a trial. We agree that the statute prevented the court from having a trial for the appellant so long as his disability existed. We think it is important to concurrently consider Ark. Stat. Ann. § 41-609 (Repl. 1977), which states:
On the basis of the report filed pursuant to § 605 (§ 41-605), the court may, after a hearing if a hearing is requested, enter judgment of acquittal on the ground of mental disease or defect if it is satisfied that, at the time of the conduct charged, the defendant lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law or to appreciate the criminality of his conduct.
The Commentary following this statute indicates that in cases of extreme mental disease or defect, where the lack of responsibility on the part of the defendant is clear, a trial can be avoided and defendant can be hospitalized under the provisions of Ark. Stat. Ann. § 41-612.
We are also concerned with the provisions of Ark. Stat. Ann. § 41-612 which in substance holds that if a defendant is acquitted on the grounds of mental disease or defect and the court finds that he presents a risk of danger to himself or the person or property of others, the court shall order the defendant committed to the custody of the director of the state hospital to be placed in an appropriate institution. If a person is committed pursuant to the provisions of § 41-612, which does not define the duration of the commitment, his rights to application for release are governed by Ark. Stat. Ann. § 41-613 (Repl. 1977). Application for release or discharge may be presented no sooner than 90 days from the date of the commitment, and subsequent applications for discharge may be made after the expiration of one year from disposition of the previous application. Therefore, neither § 41-612 nor § 41-613 sets a limit upon the time a person may be held in the state hospital. Both of these statutes place the decisional process in the hands of the court instituting the commitment. To this point in the proceedings, the statutes have been followed.
The constitutionality of the commitment statute is not challenged; however, it it argued that it is unconstitutional as applied to this appellant. For this reason it was proper for the chancellor to consider the prior court order.
The motion to determine the sanity of appellant was presented on his behalf to the trial court. The motion seemed to request a determination of appellant’s capacity to stand trial. The court, acting upon the motion with evidence of appellant’s mental condition, found him not guilty by reason of lack of mental capacity at the time of the offense. The court acquitted him and ordered commitment pursuant to Ark. Stat. Ann. § 41-612.
Appellant argues vigorously that Ark. Stat. Ann. §41-607 (2) (d) (Repl. 1977) requires the director of the state hospital to institute civil commitment proceedings against a party who is unfit to proceed to trial if he presents a danger to himself or the person or property of others. He also argues that such commitment cannot exceed a period of one year. This statute concerns an accused who is being held on a pending charge but is “unfit to proceed.” In the present case, the appellant is no longer being held in such a status. There are no criminal charges pending against the appellant nor can there ever be any criminal charges brought against him for this particular offense. Therefore, this statute would be inapplicable. His original commitment was in compliance with this statute, and there is a one year limitation after which the accused must be committed pursuant to Ark. Stat. Ann. § 59-408 (Repl. 1971) if it is found he is a danger to himself or the person or property of others.
It is true the petitioner-appellant is being deprived of his liberty, but this confinement is not a result of any crimnal proceeding. His detention is a result of his mental condition.
Since there asre no criminal proceedings pending against the appellant, it is only logical that he be held pursuant to civil commitment provided in Ark. Stat. An. § 59-408 (now Acts of 1979, No. 817) and as mandated by Ark. Stat. Ann. § 41-607 (2) (d) in case he is still being held for trail after one year but represents a danger to himself or the person or property of others. Certainly, it cannot be argued the accused is entitled to be absolutely released as long as he presents a danger to himself or the person or property of others.
We hold that when the court terminated all proceedings against the appellant by its order of acquittal he was no longer subject to the sanctions of any criminal statute. He has been effectively removed from the category of “unfit to proceed.” His status is as if he had never been charged with the crime upon which those proceedings were instituted. Therefore, confinement, after acquittal, should have been ordered pursuant to Ark. Stat. Ann. § 59-408. The trial court simply employed the wrong statute to do what it had the right to do under another statute. We do not interpret Baird v. State, 266 Ark. 250, 583 S.W. 2d 60 (1979), to contradict our present holding. Baird argued that she should be committed, and we directed the trial court to have her committed. However, we did not specify which statute would be used, and we presume she was committed, if at all, pursuant to civil commitment which is exactly what we are doing in the present case.
We do not find that Ark. Stat. Ann. § 41-603, which precludes trial, conviction, or sentencing of a person who lacks capacity to understand the proceedings or assist in his defense, conflicts with Ark. Stat. Ann. § 41-609 which specifically provides for a judgment of acquittal of such person. It is our understanding that Drope v. Missouri, 420 U.S. 162 (1975), held that a person such as appellant could not be tried. There was no trial in the present case; therefore, Drope is inapplicable.
The Commentary following Ark. Stat. Ann. § 41-607 indicates the holding in Jackson v. Indiana, 406 U.S. 715 (1972), is to the effect that a person may not be held in confinement for a period in excess of one year on an incompetency commitment in a criminal proceeding. The Commentary indicates the Commission felt the state should not incarcerate a person, who has never been tried for or convicted of a criminal offense, for a period in excess of one year. The Commission felt that confinement for longer periods should be by traditional civil commitment. We think this is sound logic. We must necessarily read into Ark. Stat. Ann. § 41-612 a limitation which prevents a person from being held indefinitely to the extent he is deprived of due process of law. The present law relating to involuntary civil commitment is Ark. Stat. Ann. § 59-1401 et seq.
Therefore, the case is remanded to the Pulaski Chancery Court with directions to order the director of the state hospital, or his representative, to make a determination whether the appellant presently presents a danger to himself or the person or property of others. If the director or his representative finds the petitioner presents such danger, he will immediately institute civil commitment proceedings. If it is found that the appellant does not present a danger to himself or the person or property of others, the director will notify the trial court of his findings and will release the petitioner from custody.
Reversed and remanded.
Fogleman, C J., and Hickman and Stroud, JJ., concur in part, dissent in part.