A petition for a writ of habeas corpus was filed in the District Court by Ray M. Stewart on August 23, 1948, alleging his illegal confinement at St. Elizabeths Hospital in Washington by its Superintendent. The petition states he was confined because of alleged mental incompetency but that “he is of sound mind as he knows right from wrong.” 'He also challenges the validity of his original commitment in 1932. A rule to show cause issued, to which the acting Superintendent filed a return admitting the restraint but denying its illegality. The return recites certain events in the life of petitioner before his commitment and sets forth earlier legal proceedings. These include his commitment in 1932 after a finding by the court that he was of unsound mind, and applications for writs of habeas corpus filed by him in 1932, 1933, 1937, and 1939. It also alleges that in April, 1944, and again on December 13, 1946, hearings were held in the District Court resulting in each instance in remand of Stewart to the custody of the Superintendent. Finally the return sets forth the opinion of respondent and of other members of the hospital staff skilled in the care, diagnosis and treatment of nervous and mental disorders that Stewart is of unsound mind, suffering from psychosis, paranoid type, with psychopathic personality, and would be dangerous to himself and others were he to be discharged into the community.
Upon consideration of the petition, rule to show cause and return, but without a hearing, the court entered an order on September 16, 1948, dismissing the petition and discharging the rule. The appeal is from this order. Since it was entered after September 1, 1948,1 the effective date of the new Judicial Code, we are of the opinion *341its provisions apply. In relevant part we set them forth.2 Our decision on the merits, however, would be the same were, previous statutes relating to the writ thought to apply. We have considered also the statutes of the District of Columbia.3 Assuming them to be in effect, they too do not require a different result.
Preliminarily we also note the absence of doubt as to the appropriateness of the procedure of habeas corpus to test the legality of detention for alleged unsoundness of mind, including the challenge of continued detention because of the claim of restoration to sanity. Overholser v. Boddie, 87 U.S.App.D.C. -, 184 F.2d 240. See, also, Ex parte Rosier, 1942, 76 U.S.App.D.C. 214, 223, 133 F.2d 316, 325 and 21 D.C.Code, § 325 (1940).
The controversy is over the question whether in the circumstances of this case the court erred in dismissing the petition and discharging the rule without a hearing on the question of sanity.4
The petition alleges that Stewart “is of sound mind.” The addition of the explanatory words “as he knows right from wrong” does not convert this allegation into something less than one of soundness of mind. See Stephens, J., in Ex parte Rosier, 76 U.S.App.D.C. at page 224, 133 F.2d at page 326. This is so notwithstand*342ing there may be some types o-f insanity accompanied with the ability to distinguish right from wrong. Skill and perfection in petitioner’s method of alleging sanity is not required. Darr v. Burford, 1950, 339 U.S. 200, 203, 70 S.Ct. 587; Stephens, J., in Ex parte Rosier, 76 U.S.App.D.C. at pages 222, 224, 133 F.2d at pages 324, 326. See, also, Rule 8 (f), Fed.Rules Civ.Proc., 28 U.S.C.A. “ * * * habeas corpus has long been regarded as a proceeding in which a liberal judicial attitude is peculiarly appropriate in view of the broadly remedial nature of the writ.” Mercado v. United States, 1 Cir., 183 F.2d 486, 487. Furthermore, we may not construe the petitioner’s words as failing to assert present sanity because he also attacks as illegal the previous adjudication to the contrary; for although he means to say he has always been sane it is also true that he means to say he is sane at the time he files the petition.
The return, in setting forth aspects of earlier personal conduct of petitioner, court proceedings which include his prior unsuccessful efforts to secure release, and opinions that petitioner remains of unsound mind, joins issue on the question of sanity.5 Recitations regarding the nature of his affliction and other details to which we have referred do not alter this situation.
When a factual issue is at the core of a detention challenged by an application for the writ it ordinarily must be resolved by the hearing process. This is a chief purpose of the habeas corpus procedure. “Nothing less will satisfy the command of the statute that the judge shall proceed ‘to determine the facts of the case, by hearing the testimony and arguments’.6 * * * The Government properly concedes that if the petition, the return, and the traverse raise substantial issues of fact it is the petitioner’s right to have those issues heard and determined in the manner the statute prescribes. * * * denials only serve to make the issues which must be resolved by evidence taken in the usual way. * * * ” Walker v. Johnston, 1941, 312 U.S. 275, at pages 285-287, 61 S.Ct. 574, 579, 85 L.Ed. 830. To similar effect are Holiday v. Johnston, 1941, 313 U.S. 342, 350, 550, 61 S.Ct. 1015, 85 L.Ed 1392; Waley v. Johnston, 1942, 316 U. 5. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Cochran v. Kansas, 1942, 316 U.S. 255, 62 S.*343Ct. 1068, 86 L.Ed. 1453; and Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309.
There is, however, another factor to be considered before we conclude finally that a hearing was required. The statutes now include a provision, enacted June 25, 1948, effective September 1, 1948, which reads as follows:
“No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States, or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry.” 28 U.S.C.A. § 2244.
It is not questioned that the legality of petitioner’s detention had been determined in the court below on December 13, 1946, and in other proceedings prior thereto, as set forth in the return. Accordingly, unless some new ground was presented or he thought the ends of justice would be served by an inquiry even in the absence of new grounds the judge was not required to entertain the petition of August 23, 1948. This provision that a new inquiry is not mandatory when no new ground appears grew out of the practice which the courts had adopted. The notes in the revised code under § 2244 state: “This section makes no material change in existing practice. Notwithstanding the opportunity open to litigants to abuse the writ, the courts have consistently refused to entertain successive ‘nuisance’ applications for habeas corpus.” The decision of this court in Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857, is referred to in the notes as illustrative of the practice. The rule had become established that issuance of the writ, and consequent hearing, should ordinarily be withheld in the exercise of a sound judicial discretion where there had been a prior decision on a like application adverse to the petitioner. This was deemed consistent with the provisions of Rev.Stat. § 761 then in effect that the party should be disposed of “as law and justice require.” Salinger v. Loisel, 1924, 265 U.S. 224, 231, 44 S.Ct. 519, 521, 68 L.Ed. 989. See, also, Rookard v. Huff, 1944, 79 U.S.App.D.C. 291, 145 F.2d 708; Pope v. Huff, 1944, 79 U.S.App.D.C. 18, 141 F.2d 727. See Darr v. Burford, supra, 339 U.S. at pages 214-215, 70 S.Ct. 587. In the Rookard case the opinion in the Pope case is approvingly quoted as follows: “ ‘Though the doctrine of res judicata does not apply to habeas corpus proceedings, the fact that the same issues have, been decided in a former proceeding may, and sometimes should, as a matter of judicial discretion, be given controlling weight. * * * ’ ” [79 U.S.App.D.C. 291, 145 F.2d 709.] See, also, Beard v. Bennett, 1940, 72 App.D.C. 269, 114 F.2d 578. These cases illustrate, though not explicitly, the distinction between applications for the writ by one imprisoned for crime and one detained in an institution because of mental incompetency. In the former the legality of the detention usually may be established with finality in one proceeding. Jurisdiction of the court, conduct of the trial, legality of sentence— these do not change, and having once been determined on adequate hearing are not new grounds when again brought forth in another application for the writ. But the situation now before us is different. A determination that Stewart was insane in December, 1946, did not determine his mental condition in August, 1948. In none of the cases to which we have referred as developing the practice which finds expression in § 2244 of the Judicial Code was the question of mental capacity involved. The decision of this court in Ex parte Jordan, 1946, 81 U.S.App.D.C. 308, 158 F.2d 401, did involve confinement at St. Elizabeths for unsoundness of mind, but the petition had been filed only five weeks after a hearing which had resulted in remand of petitioner to the hospital. We said, “ * * * there is nothing now shown that was not previously considered.” While recognizing “that even in the most desperate types of insanity and those in which the prognosis is apparently hopeless, there may be op*344portunity of recovery,” we said that “this mere possibility certainly is not of itself enough. If it were, then every insane person might file a new but similar petition every week” and receive a hearing. It was said that in the exercise of a sound judicial discretion it was entirely proper not to reopen the question five or six weeks later on the same allegations; at least some allegation of an alteration in petitioner’s mental state should be required.
We do not think § 2244, supra, or the practice which in substance it codifies and which was recognized in such cases as Ex parte Jordan, supra, permitted the court in the case at bar to deny á hearing on the factual issue of sanity. The petition was filed twenty months after the 'hearing of December 13, 1946. During that interval Stewart had continued under institutional care. This considerable additional passage of time, spent in such circumstances, gives meaning to his allegation in August, 1948, that “he is of sound mind” which did not attach to his like statement in December, 1946. The proof might or might not result in the same resolution of the issue, but the issue had changed. This is not to say that in mental cases a new issue is presented each day or week or month, in any practical sense which the court must recognize as a basis for a new hearing, or that a tenuous or frivolous or formal change in allegations must be construed as presenting new ground. But here twenty months, considered with the past, is such a substantial period within which the healing effects of time and circumstance might uncloud the mind as to cause a new issue to be presented.
Abuse of the writ was at the basis of the decision in Ex parte Jordan, supra. This also was the reason for the dissent in Ex parte Rosier, supra. No substantial period of time had elapsed since the previous hearing. No abuse is here involved, because a period of twenty months had elapsed. No explicit allegation-of an alteration in mental state, or- of restoration to sanity, Cf. Ex parte Jordan, 81 U.S.App.D.C. at page 309, 158 F.2d. at page 402, is necessary in these circumstances. Petitioner is not required, as the sole method of alleging new ground, to admit that he was once insane, was’properly so adjudged, and to say that he has recovered; and even though allegations attacking his original adjudication might be insufficient as an assertion of new ground because that question.had been determined, this does not destroy the effect of his separate allegation of present sanity. This presents a factual question which had not been presented or decided previously. In such circumstance no discretion to withhold the writ resided in the judge. The discretion authorized by the statute, § 2244, permits issuance ,of the writ notwithstanding the legality of the detention has been determined on a- previous application and nor new ground is stated. It is not a discretion to deny the writ when new ground does appear. See Sen. Rep. No. 1559, 80th Cong.2nd Sess. (1948), Amendment No. 45.
To uphold the dismissal of the petition without a hearing on the issue of sanity would in our opinion endanger the availability of the writ in this field of its lawful use. The need for courts to be relieved of making a new inquiry where the issue has been settled, supplied by § 2244 and by the practice which preceded it, and thus to prevent abuse of the writ, does not bar inquiry after so substantial a period of time and of treatment as has occurred in this case.
The statutes providé that the writ, or order to show cause, shall issue “unless it appears from the application that the applicant or person detained is not entitled thereto.” § 2243. See Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936. The provision in the same section for a rule to show cause conforms with previous practice, Walker v. Johnston, supra;7 Ex *345parte Rosier, 76 U.S.App.D.C. at page 224, 133 F.2d at page 326; and we do not doubt in this case the propriety of issuing a rule to show cause. Furthermore, in construing § 2243 in the light of judicial practice, we also do not doubt the right of the court to consider the return in deciding whether to dismiss the petition or to hold a hearing. While it is true the statute says that when the order to show cause is returned “a day shall be set for hearing, * * *” (§2243; see, also, 16 D.C.Code §§ 801-806 (1940), this language must be read with § 2244 and the last paragraph of § 2255 stating that the judge is not required to entertain the application under certain conditions therein enumerated. These conditions are not likely to appear from the petition alone. They might appear from the return. Accordingly the purpose of these provisions would be frustrated were a hearing required in every case where an order to show cause is issued and a return is made. When a hearing is required, however, the body of the person detained shall be produced unless the application and return present only issues of law, § 2243, and “The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” (Ibid.) Here the question presented was one of fact to be resolved by evidence as to petitioner’s sanity.
We find nothing in our previous decisions inconsistent with our conclusion that a hearing should have been accorded on the factual issue of sanity. In Dorsey v. Gill, supra, now overruled by Overholser v. Boddie, supra, the effort was to secure release from imprisonment for crime. The several grounds asserted were held inadequate to upset the' conviction by habeas corpus procedures. ■ Ex parte Jordan, supra, as we have noted, presented the problem of a second hearing within a few weeks on the same issue. As to the three opinions in Ex parte Rosier, supra, the main opinion of Justice Stephens clearly supports a hearing in the case at bar. Equally so, for reasons therein briefly stated, does the concurring opinion of Justice Vinson. The dissent of Justice Rutledge also intimates that in a factual situation like that now presented the elapsed period between the petitions would necessitate a hearing, though he thought the few months which had intervened in that case did not.
Since we are remanding the case to enable a hearing to be had on the factual issue of present sanity, it is not necessary to go into the question whether a hearing in any event was required as to the nature and effect of the prior proceedings referred to in the return. No question is raised as to the correctness of the allegations of the return regarding. those proceedings. We accordingly reserve decision as to the manner in which the trial court should determine the nature and effect of such prior adjudications when any question is necessary to be decided regarding them. In view of our remand so that a hearing may be had on the issue of present sanity, all pertinent questions of law as well as of fact will be subject to disposition in the manner usual and appropriate to a hearing involving the taking of testimony followed by a decision based on the facts and the law.
Reversed and remanded.
. The return was filed August 31, 1948.
. 28 U.S.C.A. § 2243. Issuance of writ; retwrn; hearing; decision.
“A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
* * * * *
“The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.
“When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.
“Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.
“The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts.
“The return and all suggestions made against it may be amended, by leave of court, before or after being filed.
“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”
28 U.S.C.A. § 2244, Finality of determination, incorporated, infra, in this opinion.
. 16 D.C.Code, § 801 (1940). Petitionr-Sufficiency — Issuance of writ by court or justice.
“ * * * and the court or the justice applied to, if the facts set forth in the petition make a prima facie case, shall forthwith grant such writ, directed to the ■officer or other person in whose custody or keeping the party so detained shall be, returnable forthwith before said court or justice.”
16 D.C.Code, § 802 (1940). Service of writ — Return.
“The said writ shall be served by delivering it to the officer or other person to whom it is directed, or by leaving it at the prison or place at which the party suing it out is detained; and such officer or other person shall forthwith, or within such reasonable time as the court or justice shall direct, make return of the writ and cause the person detained to be brought before the court or justice, according to the command of the writ, and shall likewise certify the true cause of his detainer or imprisonment, if any, and under what color or pretense such person is confined or restrained of his liberty.”
16 D.C.Code, § 806 (1940). Inquiry into cause of detention — Bail—Bond.
“On the return of the writ of habeas corpus and the production of the person detained the court or justice shall immediately inquire into the legality and propriety of such confinement or detention, and if it shall appear that such person is detained without legal warrant or authority, he shall immediately be released or discharged; or if the court or justice shall deem his detention to be lawful and proper, he shall be remanded to the same custody, or, in a proper case, admitted to bail, if he be confined on a charge of a bailable criminal offense; and if he be bailed, the court or justice shall require a sufficient bond or recognizance to answer in the proper court, and transmit the same to said court.”
. We are not concerned with the power of the district judge to act on the basis of his own findings, a matter recently clarified in Overholser v. Boddie, supra.
. We read § 2248 of the Judicial Code as not requiring a traverse when a factual issue has been clearly framed by the petition and the return or answer. This section provides that the allegations of a return or answer to an order to show cause shall be accepted as true if not traversed, except to the extent the judge finds from the evidence that they are not true. This contemplates that where the petition and return or answer do present an issue of fact material to the legality of detention, evidence is required to resolve that issue despite the absence of a traverse. This reference to evidence assumes a hearing on issues raised by the allegations of the petition and the return or answer to the order to show cause.
According to the rule of pleading illustrated in Kay v. Carr, 9 Cir., 88 F.2d 297, 298, the issues in a habeas corpus case “ * * * are framed upon the return and denial without reference to the petition for the writ.” This rule, however, is inconsistent with the treatment of the petition as a pleading accorded by this Court in Hammerer v. Huff, 71 U.S. App.D.C. 246, 110 F.2d 113, and by the Supreme Court in, for example, Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302, and Cochran v. Kansas, 316 U.S. 255, 62 S.Ct 1068, 86 L.Ed. 1453. In the Waley and Cochran cases the Supreme Court treated the allegations of the petition as allegations of fact which, not being denied, required a hearing. If this is so, the denial by an answer or return of factual allegations set forth in a petition for the writ would not require a traverse to raise the issue.
This position is also supported by § 2243 which states: * * * * *
“Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.”
This wording clearly assumes that the application and the return, without traverse or other formal pleading, may present issues of fact that must be determined at a hearing.
. Rev.Stat. § 761 (1875).
. “ * * * Since the allegations o-f such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer. By this procedure the facts on which the opposing parties rely may be exhibited, and the court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, *345such as those recited in a court record, it-appears, as matter of law, no cause for granting the writ exists. On the other hand, on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge. This practice has long been followed by this court and by the lower courts. It is a convenient one, deprives the petitioner ■ of no substantial right, if the petition and traverse are treated, as we think they should be, as together constituting the application for the writ, and the return to the rule as setting up the facts thought to warrant its denial, and if issues of fact emerging from the pleadings are tried as required "by the statute.” 312 U.S. at page 284, 61 S.Ct. at page 5T8.