(dissenting).
We are all agreed there was no reversible error which affects the verdict.
The only purpose of the remand is to command the District Court to exercise its discretion in a particular manner, i.e., to consult the Legal Psychiatric Services before sentencing. This is done in the face of the presumption of regularity and in face of the long time lapse between verdict and sentence, which plainly indicates that the District Judge received the usual pre-sentence report. I think we have no power to tell the District Court that, before sentencing a convicted person, a psychiatrist must be consulted, especially in a case where no issue of competence was raised before or during trial.
I am familiar with the sections of the D.C.Code and with Rule 32(c) of the Federal Rules of Criminal Procedure cited by the majority. I am also familiar, both from my experience as a District Judge and from observation since becoming a member of this court, with the practice in the trial court, with very, very few exceptions, of referring to the Probation Officer for pre-sentence report all cases in which a plea of guilty is taken or a conviction by a jury had and motion for a new trial denied. No claim is made that this was not done in the present case; and the lapse of time between the date of the trial (May 15, 1962) and that of the sentencing (June 15,1962) indicates that it was done. Certainly we must, in the absence of any contrary showing, presume the regularity of judicial proceedings.
Title 24, § 301(a), D.C.Code (1961), providing, among other things, for commitment of persons of unsound mind to the District of Columbia General Hospital prior to sentence, refers to cases where “it shall appear to the court from the court’s own observations, or from prima facie evidence [emphasis supplied] submitted to the court, that the accused is of unsound mind or is mentally incom*674petent so as to be unable to understand the proceedings against him or properly to assist in his own defense.”
Here we must assume that it did not appear to the trial judge, from his own observation, that appellant was of unsound mind or mentally incompetent, as provided in § 801(a); and certainly, other than that appellant was a recidivist, there was no such prima facie evidence before the court. I am not willing to accept the premise that, because a man has committed a number of crimes of violence, this is evidence of unsoundness of mind or mental incompetence. Cf. Williams v. United States, 114 U.S.App.D.C. 135, 312 F.2d 862 (1962), where we said:
“The history shows that Williams is a confirmed criminal, a ‘recidivist’ in the parlance of the penologists. But that fact alone does not require that he be committed to a hospital rather than the penitentiary. A long criminal record does not excuse crime.” 312 F.2d at 864.
There are undoubtedly a number of reasons for not calling upon the Legal Psychiatric Services, and it is exclusively within the discretion of the District Court whether and to what extent that facility is to be used in a given case. We have no jurisdiction over sentencing and surely we have no power to direct the District Court to exercise a power which is purely discretionary.
I might add that under the federal prison system a prisoner, upon his arrival at prison, is first processed for weeks in order to classify him and determine what rehabilitation is called for and, specifically, whether mental treatment is needed. If the psychiatrists conclude the prisoner needs their help, he is sent to the institution at Springfield, where the warden (Dr. Settle) is himself a psychiatrist.
The majority uses the power of this court to command that the District Court embark on an inquiry into what kind of treatment appellant needs, when Congress has set up elaborate machinery to have this precise study made at the time the prisoner is committed to custody.
I think appellant was properly convicted and sentenced, and that the judgment of the District Court should be affirmed.