
    DUKE v. DIRECTOR OF PATUXENT INSTITUTION
    [App. No. 1,
    September Term, 1963.]
    
      Decided October 17, 1963.
    
    Before the full Court.
   Per Curiam.

The applicant seeks leave to appeal from the determination of Judge Byrnes, sitting without a jury, in the Criminal Court of Baltimore, made on January 25, 1963, that the applicant continued to be a defective delinquent within the meaning of Sec. 5 of Art. 31 B of the Code (1962 Cum. Supp.).

The applicant has a considerable criminal record. He was convicted of burglary in May, 1956, was sentenced to the Penitentiary, was sent to Patuxent Institution and has been there since then. On May 14, 1957, he was found to be a defective delinquent. In November, 1960, he withdrew a petition for redetermination of his defective delinquency. The present proceedings were filed on October 11, 1962, counsel was appointed for him, and, pursuant to the statute, he was examined at State expense by a psychiatrist of his own selection, who submitted a report of his examination under date of November 12, 1962.

The basis of the present application, which is supported by a brief of counsel submitted on his behalf, is that Judge Byrnes’ determination is alleged to be against the weight of the evidence. An examination of the record shows that the applicant has made substantial progress towards rehabilitation, but that there is a difference of opinion between the psychiatrist selected by him and the psychiatrist who is the Superintendent of the Patuxent Institution and other members of the Patuxent staff, including a psychiatrist who had very recently examined him, as to whether the applicant had so far recovered as to have ceased to be a defective delinquent. The Superintendent’s prognosis was “reasonably hopeful with continued supervision and treatment.” The applicant has been subject to considerable “impulsivity,” which led him to disappear from an outside work detail and go to Texas in October, 1961. He turned himself in to the authorities and was sent back to Patuxent. He had previously escaped in May, 1960, and had gone to California where he happened to be picked up in a dragnet in which police were searching cars for the perpetration of an offense in which the applicant was in no way involved.

After an extensive hearing Judge Byrnes concluded that the applicant was not yet ready for release and that he continued to be a defective delinquent. We find no sufficient basis in the record to warrant our holding that Judge Byrnes’ determination, which was primarily one of fact, was erroneous. See Maryland Rule 886 a. Accordingly leave to appeal is denied.

Application denied.  