¶2I am unable to agree with the determination reached in the majority opinion and respectfully dissent thereto for the following reasons.
¶3It appears from the record that on May 20, 1966, some six months prior to the date alleged in the indictment herein, appellant had committed an assault upon this same child, Edwin Greer. That as a result thereof she was thereafter confined in the Logansport State Hospital, one of the institutions for the insane of this State. Such confinement, in view of the criminal prosecution in the case at bar, together with the fact that the State at the very beginning of the trial herein referred to the prior assault of May 20, 1966, raises grave doubt as to the mental capacity of appellant on the 21st day of October, 1966, to commit the crime charged.
¶4Ordinarily such an issue would be raised by the defendant, but here the State saw fit to do so by and through its witness, Samuel Greer, Sr. who in direct examination in the case in chief was questioned about and testified, over appellant’s objection, to the contents of a letter written to him by appellant while she was at Logansport State Hospital.
¶5In my opinion, the State having for some reason seen fit to raise the ghost had the obligation to lay it by a showing that prior to October 21, 1966, appellant had either been discharged as cured, not dangerous or that she was improperly confined in the Logansport State Hospital in the first place. The State having failed to discharge that duty, this cause should be reversed and remanded with instructions to grant appellant a new trial.
¶6Note.—Reported in 245 N. E. 2d 158.