BASTIAN, Circuit Judge,
with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, WASHINGTON, DANAHER and BURGER, Circuit Judges, concur.
On November 6, 1959, appellee [defendant in the trial court] came before the Municipal Court for the District of Columbia on informations charging [390]*390two violations of the bad check law, § 22-1410, D.C.Code (1951). Pursuant to § 24-301 (a), D.C.Code (Supp. VIII, 1960), the trial judge ordered appellee committed to District of Columbia General Hospital for mental observation, and appellee entered that hospital the same day. A report from the hospital was received by the court on December 4, 1959, stating that appellee was at that time incompetent to stand trial. Under the provisions of § 24-301 (a), the trial judge ordered that appellee remain at the hospital for treatment. On December 28, 1959, a second report was received from the hospital stating that appellee had improved and was then competent to stand trial. The psychiatrist who wrote the report went on to state that, in his opinion, appellee was a manic-depressive, manic type, and that this disease particularly affects financial judgment. He further stated that, in his opinion, appellee’s crimes were the product of this mental disease or defect and that appellee required further treatment to insure against repetition of the offenses. This report was in accordance with our ruling in Winn v. United States, infra.
On December 29, 1959, appellee was brought to trial and was represented by counsel. When his case was called, appellee sought to withdraw the not guilty plea which he had entered earlier and to enter a plea of guilty. The trial judge, having before him the report that appellee was not mentally competent when the acts were committed, refused to allow a change in the plea and proceeded to conduct a trial on the charges. During the course of this trial, the psychiatrist who had examined appellee testified,1 over objection, as to appellee’s mental condition at the time of the commission of the offenses. At the trial, it appears that appellee took the stand and denied essential elements of the crimes with which he was charged. At the conclusion of the case, the trial judge found appellee not guilty by reason of insanity and pursuant to § 24-301 (d) D.C.Code (Supp. VIII, 1960), ordered him committed to St. Elizabeths Hospital. No appeal was taken.
On June 13, 1960, appellee filed a petition for a writ of habeas corpus in the District Court, to test the legality of his detention at St. Elizabeths. That court held that the Municipal Court was without jurisdiction to commit appellee in the manner described above and, on June 27, 1960, ordered that he be released unless civil commitment proceedings were instituted within ten days of the date of the order.
At the outset of the case in the Municipal Court, the trial judge was faced with the clear mandate of § 24-301 (a), which reads in pertinent part:
“Whenever a person is * * * charged by information * * * with an offense and, prior to the imposition of sentence * * * it shall appear to the court from the court’s own observations * * * that the accused is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed to * * * [a] mental hospital * * for [a] reasonable period * * * for examination and observation and for care and treatment if such is necessary * * *. If * * [391]*391the superintendent of the hospital * * * shall report that in his opinion the accused is of unsound mind or mentally incompetent, such report shall be sufficient to authorize the court to commit * * * the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial. * * * ” [Emphasis supplied.].
This statute is similar to 18 U.S.C. § 4244 (1958); the major difference being that, under the latter section, a judicial determination, after hearing, must always be made, following receipt of the psychiatrist’s report. The trial judge thus properly committed appellee to D. C. General Hospital for observation and, after ceceipt of the December 4 report, for treatment.
When the report of December 28 was received, the trial judge, pursuant to § 24-301 (b), properly held that appellee was then competent to stand trial. That section reads in pertinent part:
“Whenever an accused person confined to a hospital for the mentally ill is restored to mental competency in the opinion of the superintendent * * * the superintendent shall certify such fact * * and such certification shall be sufficient to authorize the court to enter an order thereon adjudicating him to be competent to stand trial, unless the accused or the Government objects * * [Emphasis supplied.]
The trial judge thus, on December 29, found appellee competent to stand trial, in the manner in which he originally found him to be incompetent, both actions being taken pursuant to clear and unambiguous statutory mandates.
We do not quarrel with the operation and effect of § 24-301(a) and (b); indeed, we heartily endorse them. For a defendant who is subjected to trial while mentally incompetent to understand the charges against him and unable to assist in his own defense has not really been tried at all, certainly not in the sense of a “fair” trial, which is the basic element of the due process guaranteed by the Constitution. See the colloquy, at a hearing on S. 850, 80th Cong., 2d Sess. (1948), between Judge Magruder and Senator Wiley, quoted by this court with approval in Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 245, 215 F.2d 493, 495.
Under a section of a statute which is not attacked here, appellee was properly found incompetent to stand trial and committed to a mental hospital. Subsequently, under another section of the same statute, he was found competent to stand trial and counsel was appointed for him. At this point, immediately before his trial was scheduled to begin, appellee sought to withdraw the not guilty plea which had been entered previously and to enter a plea of guilty. The trial judge did not permit the plea to be changed and proceeded to try the case. Rule 9, Mun.Ct.Crim., states:
“A defendant may plead not guilty, guilty * * *. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * * ” [Emphasis supplied.]
This is an exact copy of Fed. R. Crim.P. 11, 18 U.S.C.A. Appellee contends that the “shall not” clause modifies the first clause of this rule, with the net effect that the only circumstance in which a plea of guilty is properly refused is that outlined in the second clause. We do not think this is the case. In Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652, 114 A.L.R. 1315, certiorari denied 1937, 303 U.S. 646, 58 S. Ct. 645, 82 L.Ed. 1107, this court said:
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BASTIAN, Circuit Judge,
with whom WILBUR K. MILLER, Chief Judge, and PRETTYMAN, WASHINGTON, DANAHER and BURGER, Circuit Judges, concur.
On November 6, 1959, appellee [defendant in the trial court] came before the Municipal Court for the District of Columbia on informations charging [390]*390two violations of the bad check law, § 22-1410, D.C.Code (1951). Pursuant to § 24-301 (a), D.C.Code (Supp. VIII, 1960), the trial judge ordered appellee committed to District of Columbia General Hospital for mental observation, and appellee entered that hospital the same day. A report from the hospital was received by the court on December 4, 1959, stating that appellee was at that time incompetent to stand trial. Under the provisions of § 24-301 (a), the trial judge ordered that appellee remain at the hospital for treatment. On December 28, 1959, a second report was received from the hospital stating that appellee had improved and was then competent to stand trial. The psychiatrist who wrote the report went on to state that, in his opinion, appellee was a manic-depressive, manic type, and that this disease particularly affects financial judgment. He further stated that, in his opinion, appellee’s crimes were the product of this mental disease or defect and that appellee required further treatment to insure against repetition of the offenses. This report was in accordance with our ruling in Winn v. United States, infra.
On December 29, 1959, appellee was brought to trial and was represented by counsel. When his case was called, appellee sought to withdraw the not guilty plea which he had entered earlier and to enter a plea of guilty. The trial judge, having before him the report that appellee was not mentally competent when the acts were committed, refused to allow a change in the plea and proceeded to conduct a trial on the charges. During the course of this trial, the psychiatrist who had examined appellee testified,1 over objection, as to appellee’s mental condition at the time of the commission of the offenses. At the trial, it appears that appellee took the stand and denied essential elements of the crimes with which he was charged. At the conclusion of the case, the trial judge found appellee not guilty by reason of insanity and pursuant to § 24-301 (d) D.C.Code (Supp. VIII, 1960), ordered him committed to St. Elizabeths Hospital. No appeal was taken.
On June 13, 1960, appellee filed a petition for a writ of habeas corpus in the District Court, to test the legality of his detention at St. Elizabeths. That court held that the Municipal Court was without jurisdiction to commit appellee in the manner described above and, on June 27, 1960, ordered that he be released unless civil commitment proceedings were instituted within ten days of the date of the order.
At the outset of the case in the Municipal Court, the trial judge was faced with the clear mandate of § 24-301 (a), which reads in pertinent part:
“Whenever a person is * * * charged by information * * * with an offense and, prior to the imposition of sentence * * * it shall appear to the court from the court’s own observations * * * that the accused is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense, the court may order the accused committed to * * * [a] mental hospital * * for [a] reasonable period * * * for examination and observation and for care and treatment if such is necessary * * *. If * * [391]*391the superintendent of the hospital * * * shall report that in his opinion the accused is of unsound mind or mentally incompetent, such report shall be sufficient to authorize the court to commit * * * the accused to a hospital for the mentally ill unless the accused or the Government objects, in which event, the court, after hearing without a jury, shall make a judicial determination of the competency of the accused to stand trial. * * * ” [Emphasis supplied.].
This statute is similar to 18 U.S.C. § 4244 (1958); the major difference being that, under the latter section, a judicial determination, after hearing, must always be made, following receipt of the psychiatrist’s report. The trial judge thus properly committed appellee to D. C. General Hospital for observation and, after ceceipt of the December 4 report, for treatment.
When the report of December 28 was received, the trial judge, pursuant to § 24-301 (b), properly held that appellee was then competent to stand trial. That section reads in pertinent part:
“Whenever an accused person confined to a hospital for the mentally ill is restored to mental competency in the opinion of the superintendent * * * the superintendent shall certify such fact * * and such certification shall be sufficient to authorize the court to enter an order thereon adjudicating him to be competent to stand trial, unless the accused or the Government objects * * [Emphasis supplied.]
The trial judge thus, on December 29, found appellee competent to stand trial, in the manner in which he originally found him to be incompetent, both actions being taken pursuant to clear and unambiguous statutory mandates.
We do not quarrel with the operation and effect of § 24-301(a) and (b); indeed, we heartily endorse them. For a defendant who is subjected to trial while mentally incompetent to understand the charges against him and unable to assist in his own defense has not really been tried at all, certainly not in the sense of a “fair” trial, which is the basic element of the due process guaranteed by the Constitution. See the colloquy, at a hearing on S. 850, 80th Cong., 2d Sess. (1948), between Judge Magruder and Senator Wiley, quoted by this court with approval in Gunther v. United States, 1954, 94 U.S.App.D.C. 243, 245, 215 F.2d 493, 495.
Under a section of a statute which is not attacked here, appellee was properly found incompetent to stand trial and committed to a mental hospital. Subsequently, under another section of the same statute, he was found competent to stand trial and counsel was appointed for him. At this point, immediately before his trial was scheduled to begin, appellee sought to withdraw the not guilty plea which had been entered previously and to enter a plea of guilty. The trial judge did not permit the plea to be changed and proceeded to try the case. Rule 9, Mun.Ct.Crim., states:
“A defendant may plead not guilty, guilty * * *. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * * ” [Emphasis supplied.]
This is an exact copy of Fed. R. Crim.P. 11, 18 U.S.C.A. Appellee contends that the “shall not” clause modifies the first clause of this rule, with the net effect that the only circumstance in which a plea of guilty is properly refused is that outlined in the second clause. We do not think this is the case. In Tomlinson v. United States, 68 App.D.C. 106, 93 F.2d 652, 114 A.L.R. 1315, certiorari denied 1937, 303 U.S. 646, 58 S. Ct. 645, 82 L.Ed. 1107, this court said:
“An application by a defendant to change his plea is addressed to the sound discretion of the court, [392]*392and the action of the court will not be disturbed, unless there has been an abuse of that discretion.” 68 App.D.C. at page 108, 93 F.2d at page 654.
We think the above language is clearly consistent with the Municipal Court’s Rule 9. The permissive clause beginning with “may” indicates a general discretion in the court, while the mandatory clause beginning with “shall not” indicates one circumstance where the court has no discretion but must refuse to permit the guilty plea.
We turn now to the issue of whether the trial judge abused his discretion in refusing to permit the guilty plea.
Procedure markedly similar to that called for by 18 U.S.C. § 4244 is outlined in § 24-301 (a) and (b) of the D.C.Code, and this court has consistently held that an examination conducted under § 4244 to determine a defendant’s competency to stand trial must be broad enough to include an inquiry into his mental condition at the time the act in question was committed. Winn v. United States, 1959, 106 U.S.App.D.C. 133, 270 F.2d 326; Calloway v. United States, 1959, 106 U.S.App.D.C. 141, 270 F.2d 334. It would be illogical and inconsistent in the extreme for this court now to hold that the doctrine of Winn and Calloway does not apply to § 24-301 (a) and (b) of the D.C.Code. Therefore, the psychiatrist’s reports which were before the Municipal Court properly included evaluation of appellee’s mental condition at the time the acts complained of were committed.
Perhaps we can not say that at that point the trial judge knew that appellee was not guilty of the crimes charged by reason of insanity but we certainly can say that he had every reason, at that point, to believe that there was grave doubt about appellee’s criminal culpability and that the issue should be litigated. The preceding statement, of course, is based on the Davis rule,2 that insanity is not strictly an affirmative defense and can be raised by either the court or the prosecution.
In Carter v. United States, 1960, 108 U.S.App.D.C. 405, 283 F.2d 200, 203, we considered the converse of the present problem, that is, whether it was error for the trial judge to fail to order on his own motion a pre-trial mental examination of the defendant. Holding that that was a matter for the judge’s discretion, we went on to say:
“But the existence of these possibilities [civil commitment and transfer of the prisoner under 18 U.S.C. §§ 4241-4247] does not relieve the bench and bar of the responsibility of endeavoring to reach at the earliest possible stage — ideally prior to trial and sentence — the approach to a particular case which appears most just and appropriate, having regard to the individual’s mental condition, his history, and the possibility of rehabilitating him and restoring him to usefulness in the community.” [Emphasis supplied.]
This statement would seem squarely applicable to the present case. “Just result”: It will be shown later that a criminal sentence can in no wise be considered “just treatment” in such a case. “The individual’s mental condition”: A psychiatrist’s report indicating that appellee was a sick man in need of treatment was before the judge. “Rehabilitation” and “restoration to usefulness”: These considerations have been prime movers in the development of our present law of criminal insanity; certainly hospitalization was the very thing needed by appellee.3 Certainly, by all the criteria expressed in Carter, not only was the action here far from an abuse of discretion, but also it would seem affirmatively to have been the best possible decision, if not the only just one.
[393]*393In Holloway v. United States, 1945, 80 U.S.App.D.C. 3, 4-5, 148 F.2d 665, 666, this court said: “Our collective conscience does not allow punishment where it cannot impose blame.” In Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239 F.2d 52, we clearly pointed to the distinction between punishment for criminal conduct and treatment for mental disease, and we indicated our awareness of the necessity for determining which of the two procedures is appropriate for a particular case.
“That one who commits a wrong by reason of insanity must be acquitted is so well-settled that no one questions it * * *. Only the guilty are to be punished. For the merely dangerous, society provides other treatment.” [Emphasis supplied.] Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 278, 244 F.2d 355, 367.
In Williams v. United States, 1957, 102 U.S.App.D.C. 51, 57-58, 250 F.2d 19, 25-26, we clearly stated that imprisonment was wrong in the case of a mentally ill person, as well as a remedy which could not possibly secure the community against repetition of the offense. “Under our criminal jurisprudence, mentally responsible law breakers are sent to prison; those who are not mentally responsible are sent to hospitals. * * * It is both wrong and foolish to punish where there is no blame * * *. The community’s security may be better protected by hospitalization * * * than by imprisonment.”
The cases above cited establish almost a positive duty on the part of the trial judge not to impose a criminal sentence on a mentally ill person. In this case appellee had never before been convicted of a criminal offense and had previously served honorably as a commissioned officer in the armed forces. We suggest it would have been a plain abuse of discretion for the trial judge, in these circumstances, to allow a plea by which society would brand such a person with a criminal record. Appellee argues that the plea of guilty had been carefully considered by competent counsel and by appellee, who had been judicially declared competent to stand trial and to assist in his own defense. We think that, for the reasons stated above, this decision was one which appellee and his counsel did not have an absolute right to make. We might add that the foregoing reasoning omits consideration of Clark v. United States, 1958, 104 U.S.App.D.C. 27, 259 F.2d 184, and Tatum v. United States, 1951, 88 U.S.App.D.C. 386, 190 F.2d 612 where we held that trial counsel had no right to concede his client’s sanity; and Plummer v. United States, 1958, 104 U.S.App.D.C. 211, 260 F.2d 729, where we held, in effect, that failure of trial counsel to raise the defense of insanity was ineffective assistance of counsel under 28 U.S.C. § 2255. Appellee’s argument on this point impliedly calls for reversal of Plummer, if not Tatum and Clark as well. This we are unwilling to do. Society has a stake in seeing to it that a defendant who needs hospital care does not go to prison.
In the light of the previous discussion in this opinion, we are convinced that criminal insanity is a matter of grave public concern, particularly with respect to the problem of rehabilitation. Once it is established that the defendant did in fact commit the act charged but that he was insane at the time, then the problem is one of rehabilitation. In this context, the only issue is whether the defendant will go to jail for punishment or to a hospital for treatment. In hither event he will be confined, deprived of his absolute liberty.
By its very nature, a jail sentence is for a specified period of time, while, by its very nature, hospitalization, to be effective, must be initially for an indeterminate period. This difference Is not fatal because of the overriding interest of the community in protecting itself and its interest in rehabilitating the defendant himself. Certainly a man is not truly free if he has a sickness which results in his continual criminal activity, which, in turn, leads to a life-time in [394]*394jail, with only short breaks between sentences. In the case before us, had •Lynch not been treated, he might have been in and out of jail for the rest of his life on bad check charges. Now that he has received treatment, he is well on the way to unconditional release, without the probability of repeat offenses.
Therefore, once it is determined that a defendant is to be hospitalized for treatment of a mental disease or defect, further consideration of the criminal penalty provided by statute becomes irrelevant, for any and all purposes. The length of his hospitalization must depend solely on his need (or lack of it) for further treatment. It is true that he may be hospitalized for a longer time than the maximum jail sentence provided by statute. It is equally true that he may be released in a shorter time than the minimum sentence. Hospitalization, in this respect, bears no relation to a jail sentence. A jail sentence 'is- punitive and is to be imposed by the judge within the limits set by the legislature. Hospitalization is remedial and its limits are determined by the condition to be treated. As we said in O’Beirne v. Overholser, 1960, — U.S.App.D.C. —, 287 F.2d 133:
“[A person committed to St. Elizabeth’s under § 24-301 after a -verdict of not guilty by. reason of insanity] is not a ‘prisoner’; he is not under ‘sentence.’ * * * He is an ‘accused person confined to a hospital for the mentally ill,’ to quote the words of the statute.”
In Overholser v. Russell, 1960, 108 U.S.App.D.C. 400, 283 F.2d 195, we said that mandatory commitment under § 24301(d) was proper even in the case of non-violent crimes (coincidentally, bad check charges) because, even in the case of non-violent crimes, society has a great interest in protecting itself.
Once a man has been committed to a hospital under § 24-301 (d), we do not think, as did the District Judge, that the Government should thereafter be forced to prove his insanity as the price of continuing treatment. The remedy afforded by habeas corpus under present well settled law permits a person so confined to obtain his release through the courts by establishing that he has met the tests for such relief laid down in the governing statute.4
A number of factual questions have been raised by counsel in brief and in argument as to what actually occurred in the trial court. Unfortunately no reporter was present at the Municipal Court proceedings, but this does not in any way affect the jurisdiction of the Municipal Court to take the action challenged. A presumption of regularity attaches to the proceedings of a trial court in the absence of an appeal, and we are bound by that presumption, unless and until a showing has been made- that the judgment is so defective as to be subject to collateral attack, under the rules applicable in habeas corpus. See O’Beirne v. Overholser, supra. No such showing has been made here.
We hold that the Municipal Court’s action was correct as to all the points properly raised by the habeas corpus proceeding, and therefore the order of the District Court is
Reversed.