concurred.
I think that the majority of the Court gives the appeal provision of the habeas corpus statute, read, as it must be, with *393the defective delinquent law, an unnecessarily narrow construction unjustified by the literal language of both statutes and unsupported by the underlying purpose of the defective delinquent law and the great protection its provisions clearly intend to afford those who come within its purview.
Code, 1951, Art. 31B, Sec. 10, provides for a proceeding to redetermine from time to time whether the petitioner is still a defective delinquent. Sec. 11 gives the right of appeal to this Court. Sec. 10 (c) provides: “The right to review specified in this section shall not be construed to deprive the defendant of his right to petition for habeas corpus as it might otherwise exist.” Code, 1951, Art. 42, Sec. 6, grants the right to apply to this Court for leave to appeal in habeas corpus cases. Sec. 7 provides that the right of appeal “shall not apply to any case unless the petitioner is detained for or confined as the result of a prosecution for a criminal offense.” Code, 1951, Art. 31B, Sec. 6, makes it an absolute prerequisite for examination of the person for possible defective delinquency, that he has been convicted and sentenced in a court of this State of certain stated crimes or offenses or for “two or more convictions for any offenses or crimes punishable by imprisonment, in a criminal court of this State.”
I think that in a very real and direct sense one who has been found to be a defective delinquent is “* * * confined as the result of a prosecution for a criminal offense.” The quoted language obviously means that the prosecution must have been a successful prosecution — successful, that is, from the point of view of the State. The absolute prerequisite to the steps that lead to incarceration in Patuxent Institution is a successful criminal prosecution. In Bailey v. Superintendent, 190 Md. 735, and in Miller v. Superintendent, 190 Md. 741, it was held that an accused who had been confined to a mental institution on order of the Criminal Court is not “detained for or confined as the result of a prosecution for a criminal offense.” The majority of the Court sees no distinction between those cases and the case at bar. In Eggleston v. State, 209 Md. 504, the defective delinquent statute was held constitutional and it was pointed out that the emphasis was on confinement and treatment rather than on punishment, and *394that the act in its substantive aspects was civil in nature. I concurred in that opinion and now agree with the majority of the Court that it is sound. Nevertheless, it is true that the statute in Code, 1951, Art. 31B, Sec. 5, defines a defective delinquent as an individual “who, by the demonstration of persistent aggravated anti-social or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society *' * Other courts that have regarded similar statutes in the way this Court regarded the Maryland statute in Eggleston v. State, have said that one who is declared to be a sexual psychopath has not been adjudged insane and that “A ‘sexual psychopath’ is not an insane person.” Ex parte Keddy (2nd App. Dist. Cal.), 233 P. 2d 159, 162; People v. Tipton (3rd App. Dist. Cal.), 202 P. 2d 330, 331.
As I see it, the distinction between the case of one confined because of insanity that becomes manifest or is discovered as a result of a criminal act or during the course of a criminal proceeding, and one in Patuxent Institution is that the insane person could just as well be confined as such whether or not there had ever been a criminal act or a criminal proceeding. It is, essentially, merely a coincidence that the insanity which is the basis for the confinement was discovered in connection with a criminal case. For a person to be confined as a result of being found insane during the course of a criminal prosecution, there is no need whatever that he be convicted of any crime. On the contrary, he may be found not guilty by reason of insanity, or he may be found to be insane at the time of trial and, in either case, will be committed to a mental institution. Conviction — that is, a successful prosecution — thus need have nothing whatever to do with the custody or incarceration of the insane person. In Salinger v. Superintendent, 206 Md. 623, we said: “Once a determination of insanity has been made in the Criminal Court, the status of the one insane is the same as if the determination had been made otherwise.” In the case of a defective delinquent, the opposite is true. One found to be a defective delinquent remains one convicted of crime, and if he ceases to be a defective *395delinquent and his sentence has not expired, he is like any other convict serving his sentence. To deny that one confined in the Patuxent Institution, after having been found to be a defective delinquent, is not “* * * confined as the result of a prosecution for a criminal offense” is, to me, to deny words their full ordinary meaning in a statute where there is not only nothing to show that such a meaning was not intended, but much to show that it was. If the Legislature was so careful, as it was, to preserve the right to habeas corpus over and above all other protections given in Art. 31B, how can it be inferred that this one additional protective right was to be cut off short of similar rights given to one convicted of crime, when all the other protections thrown around an alleged defective delinquent are either identical with, or greater than, those given to one charged with crime?
The intent of the Legislature that the statute, although to be regarded as civil in its substantive aspects (as we held in Eggleston v. State, supra) was to be regarded as penal in its safeguards and protections and so, in its procedural aspects, seems to be made plain by its terms. The person charged is arraigned in the Criminal Court. In practice, docket entries are made on the Criminal Court docket. Trial is in the Criminal Court and the case is prosecuted by the State’s Attorney. If the defendant is found to be a defective delinquent, he is sent to the Patuxent Institution, which is under the control and direction of the Board of Correction, and more important than anything else, the defendant is deprived of his liberty, possibly for the rest of his life. Because of this last fact and the possibility that one who should not be confined might be, the Legislature went to great lengths to afford an accused every possible protection. Comparison of the Legislative Council bill introduced in the Legislature (see Appendix, Research Report No. 29) and the bill as it finally passed, as Chap. 476 of the Acts of 1951, shows changes emphasizing the legislative intent to afford an alleged defective delinquent every procedural safeguard that is given to one charged with crime, or more. In the bill as introduced, the Patuxent Institution would have been an independent and autonomous State agency. The legislature gave its control and direction to *396the Board of Correction, which controls and directs the Penitentiary and House of Correction. In the bill as introduced, one already determined to be a defective delinquent could have a hearing on the merits before a jury to redetermine his status only after three years’ confinement, with the further provision that the right of review could not again be had for the next three years. As passed, the first three-year waiting period was eliminated. The Legislature also amended the bill to provide in every case for appointment of counsel for petitioners on review, which is a constitutional requisite only in certain criminal charges. Betts v. Brady, 316 U. S. 455, 86 L. Ed. 1595. In addition, the Legislature added what is now Sec. 10 (c) of Art. 31B, providing: “The right to review specified in this section shall not be construed to deprive the defendant of his right to petition for habeas corpus as it might otherwise exist”. Finally, by Sec. 11 of Art. 31B, the Legislature literally spelled out its understanding of the statute as it relates to criminal convictions: “(Appeal.) From any court order issued under the provisions of Section 9, or of Section 10, there shall be the same right of appeal to the Court of Appeals as after any conviction of felony.” (Italics supplied). There had been no right of appeal expressly provided in the proposed bill.
California has taken the view that although a sexual psychopath statute is to be regarded as civil in its substantive aspects, it is to be treated as criminal in its procedural aspects. In Gross v. Superior Court of Los Angeles County, 270 P. 2d 1025, petitioner was adjudged a sexual psychopath and ordered to be confined to the State Hospital. He sought what was equivalent to a review under the Maryland statute and' the court remanded him to a hospital. He appealed and the lower court denied his appeal. He then appealed to the Supreme Court of California in forma pauperis and asked that Court to order the lower court to require that the transcripts-be prepared at the State’s expense. The Supreme Court held: “On the question of having the record prepared at the state’s expense section 69952 of the Government Code provides: ‘In criminal cases in which the court specifically so directs, the fee * * * for a transcript * * * shall be paid out of the *397county treasury * * The proceeding is not strictly a criminal' case as above seen yet it is to be noted it has some of the features pertinent to such cases. The state is defendant’s opponent. The one sought to be declared a sexual psychopath is entitled to bail pending determination. In re Keddy, supra, 105 Cal. App. 2d 215, 233 P. 2d 159; In re Rice, 105 Cal. App. 2d 493, 234 P. 2d 180; In re Morehead, 107 Cal. App. 2d 346, 237 P. 2d 335. He is entitled to be present at the hearing and if he has no counsel the court may appoint one for him or order the public defender to serve. Welfare & Institutions Code, Sec. 5511. His liberty is at stake. Since those things are matters pertaining to the protection and rights of a person similar to one involved in a criminal case we believe he falls within the terms of section 69952 of the Government Code, supra. See In re Paiva, 31 Cal. 2d 503, 190 P. 2d 604; People v. Smith, 34 Cal. 2d 449, 211 P. 2d 561.”
I think the reasoning of the California Court is sound, and that the Maryland statute gives even more evidence than the California statute that the Legislature intended it to operate procedurally as if it read: “A defective delinquent is to have all the rights of one accused of crime.” Eggleston v. State, supra, recognized that the statute gave evidences that it was criminal in nature, at least procedurally.
The leave to appeal should be granted. I say this because it is not entirely clear to me that the petitioner is not right in his contention that he was determined to be a defective delinquent without having been convicted of one of the necessary stated crimes, or of two or more crimes. He urges that “a misdemeanor punishable by imprisonment in the penitentiary”, as used in Code, 1951, Art. 31B, Sec. 6 (a) (2), means one of those crimes for which the Legislature has designated only the penitentiary as the place of confinement and not those where it is but an alternative to another place of confinement. Code, 1956 Supp., Art. 27, Sec. 794, gives the Criminal Courts of Maryland discretion to punish by confinement either in jail, the House of Correction or the Penitentiary on conviction of any crime committed on or after June 1, 1943, and adds that “nothing in this section shall be construed to add to, alter or *398change the class of crimes, as they existed before June 1, 1943, * * * or to make any crime infamous, by reason of any sentence to the Maryland Penitentiary, or transfer thereto, which would not have been an infamous crime before June 1, 1943 * * Cf. Yantz v. Warden, 210 Md. 343. However, no good purpose would be served in discussing this point in the light of the Court’s holding that petitioner has no right of appeal.
Chief Judge Brune has authorized me to say that he concurs in the views expressed herein.