People ex rel. Gaudino v. Superintendent of Institution for Male Defective Delinquents , 33 N.Y.S.2d 787 ( 1942 )

Hill, P. J., and Heffernan, J.

(dissenting). Relator was convicted of petit larceny on a plea on December 6, 1938. He was adjudged a mental defective on the following day and committed to the institution. The evidence shows that the relator is not too strong mentally, being just under sixty per cent of the theoretical normal Simon-Benet man. He had an opportunity to be employed in a gainful occupation at a living wage. All of the mental experts except one agree that his liberation will not endanger the safety of himself or the public, and the one not so testifying was uncertain. “ Mental defective ” is a relative term concerning which expert theorists disagree. It is for the courts to determine the standard after listening to theorists.