delivered the opinion of the Court:

The first assignment of error is that the original order committing the appellant to the hospital for the insane did not constitute a lawful commitment under due process of law, and that the provisions of the Code relating thereto are unconstitutional. Sec. 927 [31 Stat. at L. 1340, chap. 854] provides for an inquiry into the sanity of an accused person who has been found guilty of a crime. There can be no reasonable objection to the validity of the provision. It makes ample pro*558vision for the inquiry which is conducted with due regard to the protection of the defendant. It was invoked by the petitioner, and after the return of a verdict finding him insane, he was committed to the hospital, as required by the law. The principal objection is urged to sec. 929, which provides that when one committed under the preceding sections shall be restored to sanity, the superintendent shall give notice thereof to the justice holding the criminal court, and deliver him to the court according to its proper precept.

The objection is that no means is provided for the ascertainment of restored sanity, but the same is left to the discretion of the superintendent of the hospital. It is argued that under this section the court cannot recover jurisdiction over the committed person, unless the superintendent shall voluntarily certify that he has been restored to sanity; nor can the prisoner set in motion any effective means to procure his discharge.

We do not concur in the soundness of this argument. The provision that the superintendent shall certify to the restoration of the sanity of the prisoner, and that he may then be brought before the court for sentence, is founded in the presumption that the superintendent 'will perform the duties of his office fairly and properly, and is a reasonable one. But, assuming that, in instances, the officer might not perform his duty, and might not certify to the restoration of the prisoner’s sanity, it does not follow that the situation is without remedy. The prisoner, having been convicted, and his sentence suspended by reason of his insanity, is not released from the jurisdiction of the court. If the court should be advised that the prisoner, committed to the hospital to remain while insane, had been restored to sanity, and that the officer in charge had failed to certify to the fact, we are not prepared to say that it might not cause the prisoner to be produced and judicial inquiry made to ascertain the fact; nor, if found to be restored to sanity, it might not proceed to sentence him in accordance with the verdict. But that question is not directly involved. On the other hand, the section does not provide that the restored sanity of the prisoner shall not be ascertained in any other way. If it ex*559pressly committed the matter exclusively to the voluntary exercise of the discretion of the superintendent, it might be subject to the objection urged. But we find in it nothing that precludes the right of the prisoner to have a judicial inquiry made into the fact of restoration to sanity. If the prisoner’s friends have reason to believe that he has been restored to sanity, and is therefore no longer subject to restraint and treatment in the hospital for the insane, they would be entitled to a Avrit of habeas corpus to compel his production before a court Avhere due inquiry could be had. Re Buchanan, 129 Cal. 330, 50 L.R.A. 378, 61 Pac. 1120; Gardner v. Jones, 126 Cal. 614, 59 Pac. 126. If found to be sane upon such inquiry, he would, instead of being discharged, be delivered into the custody of the criminal court for sentence in accordance with the verdict of guilty previously returned against him. The appellant had the opportunity to raise this question upon the traverse of the return, and it was not denied him; but he voluntarily Avithdrew his traverse, and relied upon a demurrer which admitted the truth of his continued insanity.

It is argued under the second assignment of error that the permission of the superintendent to petitioner to leave the* hospital in care of his brother, and his production in court and release on his recognizance was, in effect, a notice by the superintendent, and a finding by the court that he had been restored to sanity; wherefore his subsequent arrest and recommitment were without authority of law; in other words that the situation required proceedings de novo for a finding of lunacy and an Qidei of. QQiimitmenL

The return shows that petitioner was brought into court on October 12, 1908, where his motion for new trial was heard and overruled, and his recognizance taken for his appearance for sentence when required. That he was “paroled by the court.” On the same day his condition was found improved, and for that reason he was temporarily discharged in care of his brother. He was not discharged as cured. And the return further shows that he has never been restored to sanity. He was not found by the superintendent to be restored to sanity, *560and no notice to that effect was given to the court. The court made no inquiry into his sanity, much less any adjudication to that effect. All that can be deduced from the action of the court and the superintendent is that the petitioner, while still insane, was a harmless lunatic, and might safely be suffered to be at large temporarily in the care of his brother. For causes not explicitly shown in the record, he was arrested and returned to the hospital. While these proceedings are subject to criticism as irregular, we do not perceive any ground that the petitioner has to compain of them. His sanity had never been restored; he had been, in an irregular way, permitted to go at large in care of a guardian, and this permission or “parole,” as it has been called, has been terminated. There was no occasion for a new inquiry. There was no new adjudication and commitment. He is held under the former order and commitment, as a prisoner might be who had escaped, or had been permitted temporarily to go at large.

If the appellant’s next friend has reason to believe that he can now prove his restoration to sanity, he can, as above intimated, have an opportunity to obtain the necessary hearing “thereof. If then shown to be sane, he would be delivered into the custody of the criminal court for sentence. If found to be still insane, he would be recommitted to the hospital.

The order discharging the writ and remanding the petitioner must therefore be affirmed. Affirmed.