Mariann Colby was a Shaker Heights homemaker who had fallen
in love with another man. In 1952, the 27-year-old woman
obsessively took an interest in a man named John Young, even
following him on a date. It got so bad that Young asked Mariannís
husband, Robert Colby, to step in and put an end to this
unrequited love. He did, and all seemed to be well.
Six years later, the Colbyís moved to a house just down the street
from the now-married John Young. The two couplesí sons became
buddies. Over time, the Youngs didnít want their son to spend so
much time with little Dane Colby. Tension grew as Mariann wanted
to remain friends.
On Aug. 24, 1965, Mariann
Colby called and spoke to John Young, the man she used to love.
She said she believed his sonís jacket was left at her house, so
he sent John Cremer Young Jr. to go collect it.
She shot the boy in the head
and hid the gun in three pounds of ground beef in her freezer.
The murder of the
boy next door
In the opinion of psychiatrist Charles A. deLeon,
any adult who murders another person's child, except in connection
with a kidnapping or acts of sexual perversion, must be psychotic.
Dr. deLeon expressed this conclusion as an expert witness for the
defense in the 1966 trial of housewife Mariann K. Colby for
the apparently motiveless killing of a neighbor's eight-year-old
son, John Cremer Young Jr., in Shaker Heights, Ohio, an eastern
suburb of Cleveland.
had moved to the Cleveland area in 1952 with her husband Robert, a
space engineer. Soon after their arrival, Mariann, then 27, formed
a compulsive and unrequited attachment to an unmarried man. She
called him many times on the telephone and was known to stalk him
when he was on a date; she persuaded herself delusionally that the
man returned her affection and she could not be shaken in this
conviction even after he bluntly rejected her advances at a dinner
her quarry could bear the persecution no longer and made an early
morning telephone call to Robert Colby; he asked the complaisant
husband to keep Mariann away from him, and Colby, well aware of
his wife's infatuation, asked her to end the pursuit. Mariann
promised to comply with his request, but in April 1963 she bought
a sixty-year-old .32 caliber pistol and a box of fifty cartridges
from a gun dealer in Medina, Ohio, providing a false name, "Mrs.
John and Nancy Young moved into a house on Warrington Road two
doors away from the Colbys, and little Dane Colby became a
playmate of the Youngs' son Cremer. Over the years the Youngs came
to disapprove the two boys' spending so much time together.
was a slow learner and Nancy Young found other faults: "[Dane] was
always the aggressor, the boss. He talked a little more in a
childish manner than the other boys. His walk was pigeon-toed,
with quick steps in an effeminate manner."
spring of 1964, Mariann Colby called Nancy Young to express
belatedly her annoyance over being omitted from the guest list for
the Youngs' previous Christmas party; she also resented Nancy's
refusal to baby-sit for Dane. On a number of occasions Mariann
slapped the Young children, adding to the tensions between the two
families. Somehow Nancy Young was able to mollify her neighbor's
anger to a certain extent, but Mariann was convinced that John
Young "hated" her; perhaps she sensed that she had been rejected
once again by a man down the street.
a.m. on Tuesday, August 24, 1965, Mariann Colby attempted to reach
Nancy Young on the telephone. Nancy was laid up in bed with a foot
injury so John Young took the call. Mariann told him that a
child's jacket had been left at her house and that she thought it
was Cremer's; her description seemed to match Cremer's favorite
jacket, which he had picked out of a Sears Roebuck catalogue.
Cremer over to the Colbys shortly afterward, and when he did not
return immediately he and Nancy assumed that their son had stayed
to play with his friend Dane. When, however, several hours passed
without Cremer reappearing, the Youngs became concerned. They
called Mrs. Colby, who told them that Cremer had left her house
some time before.
a college student walking his dogs in the suburb of Gates Mills,
ten miles farther east, came upon the body of a boy lying in the
woods. A camp label on his sneakers identified the victim as
"Cremer the Lion". The Youngs' little son had been found.
September, when suspicion focused on her, Mariann Colby gave the
police and others conflicting versions of what had happened to
Cremer Young. At first she claimed that her son Dane had
accidentally shot Cremer when the two boys were at play. Tests of
the obsolete weapon proved that Dane would not have had the
strength to pull the trigger, which required about sixteen pounds
with this evidence, Mariann admitted that it was she who had fired
the gun but maintained that the killing was accidental. She said
that when Cremer was playing alone on her basement landing she
gathered some clothing and at the same time picked up the gun
(which she had unaccountably placed under the laundry) causing the
pistol to fire. She was unable, however, to explain away the
powder burns indicating that the gun was fired two inches from the
back of Cremer's head.
before three judges empanelled after a jury was waived by Mrs.
Colby, prosecutor George J. Moscarino, although unable to cite a
rational motive for the killing, sought to overcome the preferred
defense of insanity by forging a chain of evidence establishing
that a clever criminal mind was at work; Moscarino sought to
persuade the judges that the shooting was premeditated and that
Mrs. Colby had cunningly attempted to conceal her guilt and lead
the police investigation along false trails. Mrs. Colby, the
prosecutor showed, had first loaded the revolver and then called
the Young home about the jacket Cremer had left. The shooting must
have occurred shortly after Cremer's arrival at the Colby house
because a neighbor testified to having seen the Colbys' blue
station wagon backing out of their driveway around 8:30 a.m.;
moreover, Mrs. Colby had shot the boy at close range.
incriminating bloodstains, she wrapped his body in a coat (later
burnt) and placed a plastic cover in the station wagon. She drove
to the wooded area in Gates Mills, where she carried the body for
two hundred yards before depositing it in a secluded spot.
Returning home, she selected a hiding place for the murder weapon
that was worthy of Alfred Hitchcock; she concealed the gun in
three pounds of ground beef that she stored in the bottom of a
basement deep freeze. Moreover, after the murder she called the
police several times to cast suspicion on neighbors.
neither the killing by the defendant's hand nor the fact that it
had been intentional, Mrs. Colby's attorney, Gerald S. Gold (who
had served as Cleveland's public defender until entering the
case), relied on the testimony of a clinical psychologist and two
psychiatrists to confirm Mrs. Colby's legal insanity under Ohio's
version of the M'Naghten Rules. The first expert, Dr. Lily
Brunschwig, a clinical psychologist at Cleveland's University
Hospitals, diagnosed Mrs. Colby as a paranoid schizophrenic. The
witness described Mrs. Colby's sadistic interpretation of a
Rorschach ink blot normally viewed as representing circus clowns
or dogs: "I see two Scottie dogs; the foot and leg of one and the
other are injured and bleeding. . . . Their noses are tied
together with a rag, like some person did this deliberately to
witness, Dr. Arthur L. Rosenbaum, a psychiatrist at University
Hospitals, opined that the defendant could not distinguish between
right and wrong at the time of the shooting. He concluded that her
homicidal tendencies were of long standing and that when she
purchased the gun, she did so with the intention of killing the
unmarried man who had rejected her advances.
state's final expert, psychiatrist Charles A. deLeon, pictured
Mrs. Colby as aggressive, brutal and remorseless and suffering
from a severe psychosis manifesting itself in confused thinking
divorced from reality. Even the state's expert witnesses provided
substantial support for a finding of legal insanity. Dr. David
Sprague, of the psychiatric department at Lakewood Hospital,
portrayed Mrs. Colby as a "borderline" person who swung between
normal and psychotic behavior. He could not rule out the
possibility that "disturbed thinking played a part in her
In a tense
and heavily guarded courtroom which had been cleared and searched
following a telephoned threat that there would be a shooting in
the event of a not-guilty verdict, presiding judge Donald F.
Lybarger announced the court's decision: not guilty by reason of
insanity. In the per curiam decision, the three judges
attacked the right-and-wrong insanity test of the M'Naghten
Rules for restricting judicial consideration to the effects of
mental illness on cognitive or intellectual faculties.
closing argument Mrs. Colby's counsel had argued that his client
had "lost her battle not only in the court but against psychic
disintegration." He continued: "No matter what the court does,
Mrs. Colby will be in institutions for a long, long time."
Counsel's prediction, however, proved to be inaccurate; after
confinement in the Lima State Hospital for the Criminally Insane
for about four years, Mrs. Colby was released. Since then she has
vanished into an obscurity for which everyone is grateful.
article was previously published in 146 New Law Journal
1754, 1758 (Nov. 29, 1996).
Collected Essays of Albert Borowitz
State, ex rel. Colby, v.
June 14, 1972.
STATE, EX REL. COLBY,
On March 25, 1966, Mariann Colby, who had been
tried for murder in the first degree, was found not guilty by
reason of insanity and committed to the Lima State Hospital
pursuant to R.C. section 2945.39. In July 1971, she filed an
original action in habeas corpus in the Common Pleas Court of
Allen County. Following hearing thereon, by journal entry filed
November 4, 1971, the Common PleasCourt found that she was sane
and unlawfully restrained of her liberty and ordered her released
forthwith from the Lima State Hospital, which was thereupon done.
On November 9, 1971, the respondent Superintendent of the Lima
State Hospital filed his notice of appeal to this court and on
November 15, 1971, filed his motion in the trial court to stay
execution of its order of release pending the appeal. The record
before this court does not reveal that a ruling was ever made on
On the same date, November 15, 1971, the
respondent also filed a motion in this court to stay execution of
the Common Pleas Court order of release. on November 16, 1971,
this court overruled that motion finding that respondent had
failed to comply with Appellate Rule 7 and "that the order of the
Common Pleas Court having been fully executed by the release of
Mariann Colby it is beyond the power of this court to stay
Upon hearing arguments of the appeal on its
merits the matter of possible mootness of the appeal was suggested
by the court and thereafter briefed by the parties. That issue is
the one with which we are now concerned.
In considering same it must be observed that in
the eyes of the law Mrs. Colby is not a convicted criminal but was
found not guilty by reason of insanity. Her status in the Lima
State Hospital was merely one of patient who by reason of the
statutory presumption of continued insanity is committed there for
treatment until restored to sanity, a status essentially the same
as that of any patient committed to a civil mental institution.
It also must be emphasized that an action in
habeas corpus is a civil action which tests the legality of the
restraint of liberty by the respondent of the person who is the
subject of the action. Neither that person nor the respondent may
have the legality of the restraint determined by the trial court
in an action in habeas corpus if the restraint has terminated.
Historically and legally the writ of habeas
corpus has been used, and is designed, to give a person restrained
of his liberty an immediate hearing to inquire into and determine
the legality of the detention. 39 Corpus Juris Secundum 428,
Habeas Corpus, Section 4a. It loses its efficacy if the finality
of such determination may be indefinitely postponed. Consequently,
at common law, no appeal from the determination existed. Appeal
therefrom new exists only by virtue of statutory provisions. See,
for example, R.C. section 2725.26. These statutory provisions vary
from state to state and the right of appeal may, and often does,
depend on the nature of the commitment for instance, whether under
criminal process, under extradition process, under civil process,
Again there is a variance among states as to
whether, where a statute permits appeal from habeas corpus cases
generally, such appeal may be had from an order of release as
contrasted with an order denying release. In Henderson v. James,
Warden, 52 Ohio St. 242, the Supreme Court of Ohio established
that "a final order of discharge on habeas corpus, may be reviewed
and reversed on error by a higher court." It will be noted,
however, that in that case the subject of the action was
incarcerated under criminal process and that the court of original
habeas corpus jurisdiction stayed execution of its order of
discharge pending the appeal of the matter to the Supreme Court.
We must conclude from the Henderson case that
the order of discharge before us is reviewable on appeal. However,
the issue squarely before us is whether the issues to be
determined by such review have become moot by reason of the actual
execution of the order of release, resulting here from a failure
of the respondent to timely obtain an order from either the Common
Pleas Court or from this court staying execution of the discharge
order pending appeal.
We have tried without success to find some Ohio
case where an appellate court has reviewed a determination of
discharge after the subject of the habeas corpus action has
actually been released. We referred first to the leading case
involving the issue which was before the trial court, specifically
Ex Parte Remus, 119 Ohio St. 166, a case appealed from this court.
Examination of the record of that case discloses, however, that
the order of discharge was stayed by action of both this court and
the SupremsCourt. As a consequence Remus was still restrained of
his liberty at the time the issue of the legality of such
restraint was determined by the Supreme Court. We then refer to
the similar case of State ex rel. Leeb v. Wilson, Supt., 27 Ohio
App.2d 1, 272 N.E.2d 363, also in this court, but find that the
issue of mootness was not raised in that case.
However, we find respectable authority
requiring a determination of mootness Sakacsi v. McGettrick, 9
Ohio St.2d 156, wherein the respondents appealed from an order of
the Court of Appeals discharging the petitioner from their
The Supreme Court held:
"The records show that appellee has been
released from the custody of respondents. The questions presented
by this appeal are, therefore, now moot. The appeal is, therefore,
dismissed * * *."
Compare, McDonald v. Keiter, 25 Ohio St.2d 281.
Mrs. Colby has long since departed the
geographical jurisdiction of both the Common Pleas Court and this
court. She is not subject to any coercive criminal process to
restore her to the custody of the respondent. She has not escaped
from his custody but left same pursuant to court order. She is not
subject to any coercive civil process for restoration thereto. A
judgment of this court reversing the determination of release by
the Common Pleas Court could not be enforced by any process
thereon issuing either from this court or from the Common Pleas
Court to restore her to the respondent's custody. In its
essentials the situation is like that in Ohio Contract Carriers
Assn. v. Public Utilities Commission, 140 Ohio St. 160, where it
"* * * Appeals are not allowed for the purpose
of settling abstract questions [however interesting or important
to the public generally], but only to correct errors injuriously
affecting the appellant." (Bracketed phrase added from text of
See, also, 4 Corpus Juris Secundum 153, Appeal
and Error, Section 40b.
We conclude that where a patient committed to
the Lima State Hospital under the provisions of R.C. section
2945.39 as being not guilty by reason of insanity of the crimsfor
which the patient stood trial is, in an action in habeas corpus
filed in the Common Pleas Court, found to be sane and ordered
released from the hospital, and is thereupon released without stay
of execution of the order of release having been timely applied
for and ordered by either the Common Pleas Court or by the Court
of Appeals, and an appeal is taken by the Superintendent, Lima
State Hospital, to the Court of Appeals from the order of release,
notwithstanding that the order of release is reviewable by the
Court of Appeals, the issues which would otherwise be presented by
the appeal have become moot by reason of the actual release of the
patient, and the appeal should be dismissed.
YOUNGER, P. J., and COLE, J., concur.