[853]*853BURGER, Circuit Judge.
This is an appeal by Dr. Winfred Overholser, Superintendent of St. Elizabeths Hospital, Washington, D. C., from an order in a habeas corpus proceeding directing release of Herbert T. O’Beirne, who had been committed to his custody under § 24-301, D.C.Code, following a verdict of not guilty by reason of insanity on a larceny charge.1 Thereafter he unsuccessfully sought his release on four occasions. Early in 1961 a fifth 2 petition for writ of habeas corpus was filed requesting, among other things, the appointment of counsel and independent psychiatric examination. The District Court granted the petition, appointed counsel to represent appellee and appointed a private psychiatrist, Dr. J. R. Cavanagh, to conduct an examination and report to that court. Dr. Cavanagh’s professional credentials are well recognized.
Appellant, Superintendent of St. Elizabeths Hospital, in his return certified that O’Beirne “has not recovered from his abnormal mental condition and requires further treatment before he can be released into the community.” On three prior occasions appellant as Superintendent of St. Elizabeths had filed returns in substantially the same form describing O’Beime’s abnormal mental condition as sociopathic personality disturbanee. Prior to the hearing now under review, Dr. Cavanagh made and reported a diagnosis of the same basic condition —sociopathic personality disturbance, antisocial type.
Before undertaking an examination of the evidence in relation to the findings, it may be useful to recall the reasons for confinement of persons found not guilty by reason of insanity. While the statute making such confinement mandatory is recent,3 its antecedents go back more than a century. As early as Hadfield’s case,4 and ever since then, courts acting under their inherent powers or under statutes have ordered hospital confinement of persons who were relieved of criminal responsibility because of their mental condition when the criminal act was done. This was not for punishment since the very purpose of providing such a verdict was to excuse the act and relieve the actor from penalties. In its earliest development, confinement was primarily for the protection of society, but as medical knowledge increased and rehabilitation therapy developed more and more emphasis has been placed on the restoration of the subject to normal life free from the stigma of a criminal record. Roughly % of those committed to St. Elizabeths Hospital since 1954 under this statute have been released, including [854]*854eight who had committed homicide.5 E. g., Hough v. United States, 1959, 106 U.S.App.D.C. 192, 271 F.2d 458.
The twofold purpose of the mandatory-hospital confinement must never be overlooked, first, recovery of the patient and second, protection of society and the patient. To ignore the need for both protections or to equate this “protective” hospitalization with punishment confuses the issue and does a grave disservice to the broad social purposes of the statute, as well as the objectives of our rule on criminal responsibility. That the available hospitals may have too few psychiatrists or inadequate facilities or that they may not use the appropriate techniques, or that some may consider mental institutions worse than prisons, or that it is thought by some that civil commitment standards suggested by the dissent should be used—all of these factors are the business of the legislative, not the judicial branch of government if the statute is valid. Unless we are to hold that § 24-301 of the D.C.Code violates the Constitution—and we have recently6 said that it does not—our responsibility is to apply the statute to accomplish its plain objectives.
Inherent in the statutory scheme, whether we like it or not, is the proposition that one who is “incurably insane” and “incurably dangerous”—if there are such—may be hospitalized indefinitely.7 For such cases nothing less was intended by Congress and nothing less will protect the patient and society from the hazards involved. The statute expressly makes the safeguards of the ancient process of habeas corpus available to test the subject’s condition and detention at any time, subject, of course, to considerations such as were thoroughly canvassed in Stewart v. Overholser, 1950, 87 U.S.App.D.C. 402, 406, 186 F.2d 339, 343 (en banc). Congress in adopting § 24-301 in 1955, and providing for .the availability of habeas corpus at any time, upon a proper showing, undoubtedly had in mind as governing, 18 U.S.C. 4241 et seq.
Under standards established in a series of cases beginning with Overholser v. Leach,8 we have construed § 24-301 (g) as requiring the petitioner who seeks release without the statutory medical certification of recovery to show (1) that he has recovered his sanity and (2) that such recovery has reached the point where he has no abnormal mental condition which in the reasonably foreseeable future would give rise to danger to the petitioner or to the public in the event of his release. The mere fact that a person so confined has some dangerous propensities does not, standing alone, warrant his continued confinement in a government mental institution under § 24-301 D.C.Code. The dangerous propensities, as we have noted, must be related to or [855]*855arise out of an abnormal mental condition. See Starr v. United States, 1958, 105 U.S.App.D.C. 91, 264 F.2d 377. That abnormal mental condition may be the precise mental condition which constituted the basis for his acquittal or it may be a residual condition remaining in a patient who has improved.
In the Leach case, as here, release was .sought by habeas corpus and the District 'Court after hearing ordered Leach’s discharge. In reversing the District Court, Judge Washington speaking for a unanimous court, including Judge Edgerton, said:
“The test of this statute is not whether a particular individual, engaged in the ordinary pursuits of life, is committable to a mental institution under the law governing civil commitments. * * * Those laws do not apply here. This statute applies to an exceptional class of people —people who have committed acts forbidden by law, who have obtained verdicts of ‘not guilty by reason of insanity,’ and who have been committed to a mental institution pursuant to the Code. People in that category are treated by Congress in a different fashion from persons who have somewhat similar mental conditions, but who have not committed ■offenses or obtained verdicts of not .guilty by reason of insanity at criminal trials. The phrase ‘establishing his eligibility for release,’ as .applied to the special class of which Leach is a member, means something ■ different from having one or more psychiatrists say simply that the individual is ‘sane.’ There must be freedom from such abnormal mental condition as would make the individual dangerous to himself or the community in the reasonably foreseeable future.” (Footnotes omitted.) (Emphasis added.) Overholser v. Leach, 1958, 103 U.S.App.D.C.
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[853]*853BURGER, Circuit Judge.
This is an appeal by Dr. Winfred Overholser, Superintendent of St. Elizabeths Hospital, Washington, D. C., from an order in a habeas corpus proceeding directing release of Herbert T. O’Beirne, who had been committed to his custody under § 24-301, D.C.Code, following a verdict of not guilty by reason of insanity on a larceny charge.1 Thereafter he unsuccessfully sought his release on four occasions. Early in 1961 a fifth 2 petition for writ of habeas corpus was filed requesting, among other things, the appointment of counsel and independent psychiatric examination. The District Court granted the petition, appointed counsel to represent appellee and appointed a private psychiatrist, Dr. J. R. Cavanagh, to conduct an examination and report to that court. Dr. Cavanagh’s professional credentials are well recognized.
Appellant, Superintendent of St. Elizabeths Hospital, in his return certified that O’Beirne “has not recovered from his abnormal mental condition and requires further treatment before he can be released into the community.” On three prior occasions appellant as Superintendent of St. Elizabeths had filed returns in substantially the same form describing O’Beime’s abnormal mental condition as sociopathic personality disturbanee. Prior to the hearing now under review, Dr. Cavanagh made and reported a diagnosis of the same basic condition —sociopathic personality disturbance, antisocial type.
Before undertaking an examination of the evidence in relation to the findings, it may be useful to recall the reasons for confinement of persons found not guilty by reason of insanity. While the statute making such confinement mandatory is recent,3 its antecedents go back more than a century. As early as Hadfield’s case,4 and ever since then, courts acting under their inherent powers or under statutes have ordered hospital confinement of persons who were relieved of criminal responsibility because of their mental condition when the criminal act was done. This was not for punishment since the very purpose of providing such a verdict was to excuse the act and relieve the actor from penalties. In its earliest development, confinement was primarily for the protection of society, but as medical knowledge increased and rehabilitation therapy developed more and more emphasis has been placed on the restoration of the subject to normal life free from the stigma of a criminal record. Roughly % of those committed to St. Elizabeths Hospital since 1954 under this statute have been released, including [854]*854eight who had committed homicide.5 E. g., Hough v. United States, 1959, 106 U.S.App.D.C. 192, 271 F.2d 458.
The twofold purpose of the mandatory-hospital confinement must never be overlooked, first, recovery of the patient and second, protection of society and the patient. To ignore the need for both protections or to equate this “protective” hospitalization with punishment confuses the issue and does a grave disservice to the broad social purposes of the statute, as well as the objectives of our rule on criminal responsibility. That the available hospitals may have too few psychiatrists or inadequate facilities or that they may not use the appropriate techniques, or that some may consider mental institutions worse than prisons, or that it is thought by some that civil commitment standards suggested by the dissent should be used—all of these factors are the business of the legislative, not the judicial branch of government if the statute is valid. Unless we are to hold that § 24-301 of the D.C.Code violates the Constitution—and we have recently6 said that it does not—our responsibility is to apply the statute to accomplish its plain objectives.
Inherent in the statutory scheme, whether we like it or not, is the proposition that one who is “incurably insane” and “incurably dangerous”—if there are such—may be hospitalized indefinitely.7 For such cases nothing less was intended by Congress and nothing less will protect the patient and society from the hazards involved. The statute expressly makes the safeguards of the ancient process of habeas corpus available to test the subject’s condition and detention at any time, subject, of course, to considerations such as were thoroughly canvassed in Stewart v. Overholser, 1950, 87 U.S.App.D.C. 402, 406, 186 F.2d 339, 343 (en banc). Congress in adopting § 24-301 in 1955, and providing for .the availability of habeas corpus at any time, upon a proper showing, undoubtedly had in mind as governing, 18 U.S.C. 4241 et seq.
Under standards established in a series of cases beginning with Overholser v. Leach,8 we have construed § 24-301 (g) as requiring the petitioner who seeks release without the statutory medical certification of recovery to show (1) that he has recovered his sanity and (2) that such recovery has reached the point where he has no abnormal mental condition which in the reasonably foreseeable future would give rise to danger to the petitioner or to the public in the event of his release. The mere fact that a person so confined has some dangerous propensities does not, standing alone, warrant his continued confinement in a government mental institution under § 24-301 D.C.Code. The dangerous propensities, as we have noted, must be related to or [855]*855arise out of an abnormal mental condition. See Starr v. United States, 1958, 105 U.S.App.D.C. 91, 264 F.2d 377. That abnormal mental condition may be the precise mental condition which constituted the basis for his acquittal or it may be a residual condition remaining in a patient who has improved.
In the Leach case, as here, release was .sought by habeas corpus and the District 'Court after hearing ordered Leach’s discharge. In reversing the District Court, Judge Washington speaking for a unanimous court, including Judge Edgerton, said:
“The test of this statute is not whether a particular individual, engaged in the ordinary pursuits of life, is committable to a mental institution under the law governing civil commitments. * * * Those laws do not apply here. This statute applies to an exceptional class of people —people who have committed acts forbidden by law, who have obtained verdicts of ‘not guilty by reason of insanity,’ and who have been committed to a mental institution pursuant to the Code. People in that category are treated by Congress in a different fashion from persons who have somewhat similar mental conditions, but who have not committed ■offenses or obtained verdicts of not .guilty by reason of insanity at criminal trials. The phrase ‘establishing his eligibility for release,’ as .applied to the special class of which Leach is a member, means something ■ different from having one or more psychiatrists say simply that the individual is ‘sane.’ There must be freedom from such abnormal mental condition as would make the individual dangerous to himself or the community in the reasonably foreseeable future.” (Footnotes omitted.) (Emphasis added.) Overholser v. Leach, 1958, 103 U.S.App.D.C. 289, 291-292, 257 F.2d 667, 669-670.
Findings of the District Court
The District Court made no separate formal findings of fact but at the conclusion of the opinion stated:
“The court finds and concludes that the respondent’s refusal to file the statutory certificate that would lead to the release of the petitioner from Saint Elizabeths Hospital, is arbitrary and capricious; that the petitioner is free of mental disease and mental defect; that, therefore, he cannot be dangerous by reason of any mental disease or mental defect; and that he is entitled to an unconditional discharge from the hospital. The writ is sustained and the release of the defendant ordered. The release will oe stayed for ten days to enable the Government to bring any civil or other proceedings to test the sanity of the petitioner if it deems it wise to do so. This opinion will constitute the findings of fact and conclusions of law. * * * ” (Emphasis added.) O’Beirne v. Overholser, D.C.D.C.1961, 193 F.Supp. 652, 661-662.
There is no finding that O’Beirne will not be dangerous in the reasonably foreseeable future but only a finding that “he cannot be dangerous by reason of any mental disease,” because he has no mental disease. This finding, of course, rests on the District Court’s conclusion that sociopathic personality disturbance is not a mental disease. Whether this theory is correct or not, it has been rejected by a majority of this court. See Blocker v. United States, 1959, 107 U.S.App.D.C. 63, 274 F.2d 572. See also discussion of classification of this condition in Blocker v. United States, 1961, 110 U.S.App.D.C. 41, 47-50, 288 F.2d 853, 859-862.
The threshold question is whether the District Court’s findings meet the standards of § 24-301 as construed by a unanimous court in the Leach case, supra. It is significant that in this court’s effort to emphasize the difference between standards for competence to be tried, standards of criminal responsibility and [856]*856standards for release from St. Elizabeths we said: “Thus, even though Leach’s mental health may have improved, if there remains an abnormal mental condition which is certified as a source of potential danger, he is to be retained in custody under Section 24-301.” 103 U.S.App.D.C. 289, 292, note 3, 257 F.2d 667, 670, note 3. A comparison of the standards we have defined for release under § 24-301 with the challenged findings of fact discloses a failure to comply with the Leach case standards.
However, even though erroneous standards were applied by the District Court, we can appropriately look to see whether the evidence is sufficient to sustain the findings required by the statute and by our decisions, that is: (a) evidence that appellee has recovered to the point where he is free from an abnormal mental condition and (b) evidence that his release would not expose appellee or the public to danger in the reasonably foreseeable future.
Evidence on the Issue of Recovery
All of the evidence presented by the government is to the effect that O’Beirne is presently suffering from a mental disease. The record shows that the diagnosis at an earlier date was that he suffered from a psychosis; the present diagnosis is that he suffers from sociopathic personality disturbance, antisocial reaction.9 The opinions of the government psychiatrists are expressed against the background of a long commitment in St. Elizabeths Hospital interrupted by intervals when O’Beirne escaped. The evidence offered by O’Beirne on the issue of the present state of his mental health is found in part in Dr. Cavanagh’s prehearing written report which states:
“The diagnosis in this case is sociopathic personality disturbance, anti-social reaction.
“ * * * According to usual diagnostic standards, this case is, I believe, properly classified as Sociopathic Personality Disturbance, Antisocial Reaction. * * * ”
He explains his diagnosis more fully as
“a condition which is characterized principally by behavior disorders rather than by any particular physical or emotional disturbance manifested or felt by the patient. It is classified in the American Medical Association [sic, American Psychiatric Association?] nomenclature, in that portion dealing with mental diseases, along with several other disturbances.”
Dr. Cavanagh then went on to make clear his disagreement with the St. Elizabeths Hospital on the issue of classification of “sociopathic personality disorders” as “mental diseases” especially in the context of a criminal case. He said a personality disturbance or disorder was not a mental illness or disease in his opinion.10 He also indicated his view that there is almost no cure for a sociopathic personality. Dr. Cavanagh did not express an opinion that O’Beirne is presently of a normal mental condition. In answer to the question of whether O’Beirne’s mental condition “is an abnormal mental condition” he said:
“I would certainly not believe that Mr. O’Beirne is like the average citizen in the United States. I have [857]*857merely said that 1 don’t think that what he shows constitutes a disease. It constitutes a personality disorder, a personality disturbance, rather, which is acquired through his method of living and so forth and which is manifested only by behavior. * * I have merely said that he has not disease in the sense that I understand disease. (Emphasis added.)
******
“Well, if you are going to consider this a mental condition, I am not sure that I would. * * * I would consider these to be more emotional disturbances than mental.” (Emphasis added.)
This witness was very precise in his testimony, making it clear his disagreement was with the “label” and classification of appellee’s condition; he agrees with the government psychiatrists that appellee has a “sociopathic personality disturbance, antisocial reaction”; he does not agree that this is or should be considered a “mental disease.”
With respect to the question of whether O’Beirne presently has, in terms, an “abnormal mental condition” appellee offered no evidence. On this score there is no genuine conflict.11 Moreover, this court has held that a person suffering from “sociopathic personality disturbance, antisocial reaction” 12 has an “abnormal mental condition.” See Overholser v. Leach, supra. [103 U.S.App.D.C. 289, 257 F.2d 670.]
Viewing the evidence as a whole and drawing the inferences most favorable to O’Beirne but against the background of his extensive criminal record, 12 or 14 confinements 13 for treatment in government hospitals for drug and alcohol addiction, his long psychiatric history and the testimony of the psychiatrists in the latest hearing, it would seem impossible to say he does not now have an “abnormal mental condition” within the meaning of the Leach case.
But our conclusion that the record compels a holding that O’Beirne has an abnormal mental condition does not dispose of the matter. We must also determine whether there is evidence to support the finding that appellee’s release will not expose him or the public to danger in the reasonably foreseeable future.
Evidence as to Dangerous Propensities
The government’s evidence on this score is that O’Beirne will endanger both himself and the public if he is released. The evidence that O’Beirne’s release would be dangerous to him and to the public is overwhelming. Every government psychiatrist so testified and O’Beirne’s expert testimony does not attempt to contradict this. As to his possible return to drug addiction Dr. Cavanagh said that “if he has been off of drugs since 1957 it would be most un[858]*858likely that he would go back * * *. However, this is only a guess.” On direct examination he was asked:
“Q. Dr. Cavanagh, taking into consideration the petitioner’s past history with drug addiction, his criminal record, and the fact that he escaped from St. Elizabeths on four or five different occasions, do you have an opinion, Doctor, as to whether or not the petitioner in the reasonable [sic] foreseeable future would be dangerous to himself or to others if he were released? A. I would have to answer that question in this way: I have testified that I do not believe that Mr. O’Beirne has a mental illness and, therefore, I would have to qualify my answer by saying that as a psychiatrist, since I feel he has no mental illness, I don’t think that he is likely to go to any of these things because of mental illness. What his behavior is going to be in the future I have no way of knowing, I have no crystal ball. But I can only say that since he is without disease, this would be the question which I would expect to answer, that he has no illness which will bring these things necessarily about.” (Emphasis added.)
This answer, out of context, bears some analysis. The witness was scrupulously candid with the court and was saying only this: that since he does not believe O’Beirne has a mental illness, as he understands that term, he does not believe O’Beirne will be dangerous because of a mental illness. But the witness categorically refused to predict what O’Beirne’s behavior would be in the future. When we consider his testimony in he light most favorable to O’Beirne we nd the appellee’s case gains little suport, if any, on his claim that if released e will not be dangerous to himself or others.
Considering all the evidence on both of the crucial issues the record thus shows:
(1) All medical witnesses agree that O’Beirne suffers from soeiopathic personality disturbance, antisocial reaction. The government expert witnesses state this is a “mental disease” and hence plainly an “abnormal mental condition.” The court appointed witness does not consider this a “mental disease.”
(2) The government’s medical witness states categorically that release at this time will expose O’Beirne and others to danger of repeated antisocial behavior and criminal acts; O’Beirne’s court appointed expert refused to express a fixed opinion on his future behavior.
On this record therefore, the basic findings essential to release have not been made.
The issue is not whether O’Beirne now has a “mental disease” but whether he has an “abnormal mental condition” which will cause him to be dangerous to himself or others if released.14 The difficulty is partly one of semantics and “labels” but it is also deeper than that. The District Judge has used a “disease-defect” standard to determine eligibility for release but § 24-301 does not use such standards and the Leach case has already defined what the statute means. The District Court must apply those standards as defined in the Leach case.
As we have pointed out in the Leach and Ragsdale opinions, it must be presumed, and certainly hoped, that a confinement in St. Elizabeths after a verdict of not guilty by reason of insanity, will bring about an improvement and recovery of the individual so he can resume a place in society without danger to himself or the public. Underlying our opinions in the Leach, Ragsdale and Starr cases is recognition of the obvious that a recovery from mental ills does not come overnight; we are not dealing here with [859]*859an affliction like a diseased appendix where a surgical operation and a brief convalescence are almost invariably followed by a recovery. Recovery from behavior disorders or mental ills, by whatever names or labels we use, is slow and dubious at best and is rarely as predictable as the course of a physical disease. Judge Washington’s choice of words “abnormal mental condition” in Leach was not casual or thoughtless, but studied and calculated. That concept means that a patient like O’Beirne may progress from a true and undisputed “mental disease” such as a psychosis, which he formerly had, to his present undisputed state of “sociopathic personality disturbance, antisocial reaction.” But that result does not qualify him for release; he cannot be released until the process of recovery reaches the point that his release will not expose him or others to danger. We emphasized this in the Ragsdale opinion in saying
“A patient may have improved materially and appear to be a good prospect for restoration as a useful member of society; but if an “abnormal mental condition” renders him potentially dangerous, reasonable medical doubts or reasonable judicial doubts are to be resolved in favor of the public and in favor of the subject’s safety. * * * ” Ragsdale v. Overholser, 1960, 108 U.S.App.D.C. 308, 312, 281 F.2d 943, 947.
The dissenting opinion does not meet the central issue in the case but rather asserts in essence that 3% years in St. Elizabeths Hospital constitutes too much confinement for a one year offense.15 This approach strikes at the very heart of the effort to rehabilitate the maladjusted offender. The purpose of the standard of criminal responsibility, adopted for this jurisdiction in 1954, did more than broaden the area of exculpation from criminal responsibility; it also contemplated rehabilitation in a medical rather than penal context. Prompt congressional enactment of the mandatory confinement provision of § 24-301, D.C. Code made this certain.
It is fundamentally wrong, we think, to measure the treatment needs of a sick person by the length of the penal sentence he would have received had he not been excused from punishment, for in the eyes of the law such a person has committed no crime. Statutes tell us how long a sentence should be but neither statutes nor medical books can tell us how much hospitalization is needed to effect rehabilitation. The dissenting opinion seems to regard O’Beirne as “paying his debt to society” by his stay in St. Elizabeths Hospital when the truth is that this is in no sense a “punishment.” If any debt is being paid, it is precisely the reverse of this; it would be more nearly correct to say society is discharging an obligation to O’Beirne in the procedure established by Congress to assure him psychiatric care at public expense.
The dissenting opinion also seeks to introduce into the process civil standards of committability by the Mental Health Commission in direct conflict with the plain congressional intent expressed in § 24-301. It is one thing to argue that confinement after a verdict of not guilty by reason of insanity, without a special and contemporaneous hearing, is a violation of due process; it is quite another proposition to say that as soon as the hospital confinement exceeds the maximum sentence for a guilty person, we will review the problem and shift into a civil proceeding not designed, as the Leach opinion pointed out, to deal with persons who have committed dangerous acts. The civil commitment process while available for some kinds of aberrant conduct was not established to" deal with persons whose dangerous propensities and mental illnesses come into focus and relevancy when they commit what otherwise would [860]*860be criminal acts. O’Beirne is not an individual
“engaged in the ordinary pursuits of life, [who] is committable to a mental institution under the law governing civil commitments. * * * Those laws do not apply here.” Overholser v. Leach, supra.
Moreover, as pointed out in the Leach and Ragsdale cases, the person confined is not by any means without a remedy. He is free to challenge his confinement by resort to habeas corpus at any time.16 After all, the Great .Writ has long been regarded as the ultimate among the safeguards of individual liberty and the constitutionality of § 24-301 was saved in part at least by the constant availability of habeas corpus in a proper case. See also Curry v. Overholser, 1960, 109 U.S.App.D.C. 283, 287 F.2d 137.
In Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404, we held that the jury must be told what becomes of an accused who is found not guilty by reason of insanity and Judge Edgerton, speaking for the court, said:
“ * * * we think that when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a “hospital for the insane” as long as “the public safety and * * [his] welfare” require. Though this fact has no theoretical bearing on the jury’s verdict it may have a practical bearing.” (Emphasis added.) (Footnotes omitted.)
It seems reasonably clear that the “practical bearing” Judge Edgerton referred to in the context of the issues of the Taylor case17 was the greater likelihood that a jury would accept the claim of insanity if they knew the accused would not be set free without some medical attention being given him because of his claimed abnormal mental condition.. In Lyles v. United States, 1957, 103 U.S.App.D.C. 22, 254 F.2d 725, certiorari denied, 1958, 356 U.S. 961, 78 S.Ct. 997, 2 L.Ed.2d 1067, we reaffirmed this requirement that the jury be told of the mandatory confinement in a mental hospital.
The position expressed by JudgeEdgerton in his dissent is, of course, sharply at odds with his position in the-Taylor and Lyles cases. Were we to-adopt his present position it would be incumbent upon the trial judges to explain to the jury that “within a reasonable period of time which will vary from case to-case” continued hospital confinement under § 24-301 would require a civil proceeding under the Mental Health Act, D. C.Code 1951, § 21-301 et seq. It is at least arguable that as a “practical” matter such an enlarged cautionary instruction could well cause jurors to be less willing to reach a verdict of not guilty by reason of insanity. The underlying purpose of § 24-301 and the instruction called for by the Taylor and Lyles cases would thus be thwarted if the jurors should render a guilty verdict on an accused [861]*861who in fact should be held not responsible because of insanity. We are not persuaded that the position of this court established in the Leach, Ragsdale and other cases, all very recent, should be abandoned.
In arguing that O’Beirne “was not found to have been insane” Judge Edger-ton overlooks not only his own positions in the Taylor and Lyles eases, supra, but also appears to overlook or consider irrelevant the fact that O’Beirne affirmatively urged the defense of insanity upon the trial court, and it was his evidence that persuaded the court. His retained counsel offered as the only defense in O’Beirne’s behalf psychiatric evidence that the defendant had been suffering from a mental disease at the time of the commission of the crime and that the crime was a product of this mental disease. The defense then rested. The government offered no evidence that O’Beirne was free of mental disease when the crime was committed. On the basis of this record Judge Scott then found O’Beirne not guilty by reason of insanity and ordered him committed to St. Elizabeths Hospital pursuant to § 24-301 D.C. Code as amended. See Findings of Fact and Conclusions of Law filed March 10, 1961, in Habeas Corpus 8-60, before Holtzoff, J., District Judge.
The suggestion that civil mental health commitment procedures, with their “greater procedural safeguards,” are a more appropriate remedy seems to rest on the idea that O’Beirne committed a “non-dangerous offense.” But to describe the theft of watches and jewelry as “non-dangerous” is to confuse danger with violence.18 Larceny is usually less violent than murder or assault, but in terms of public policy the purpose of the statute is the same as to both. Larceny, assault and murder are all dangerous; they are simply different areas of prohibited conduct. Hence unless we are to ignore the objectives and policies of the statute in question, the release provisions must apply in the same way and with the same force to larceny without violence as to a crime of violence until Congress speaks otherwise. Of course the Superintendent of St. Elizabeths might well take into account, in making his appraisal of potential danger, the quality of the patient’s abnormal mental condition as well as the history of conduct. But as we pointed out in Overholser v. Russell, 1960, 108 U.S.App.D.C. 400, 283 F.2d 195, a “bad check” passer at large endangers himself by exposure to additional violations and additional arrests, trials and confinements, to say nothing of the serious effect on the public of his predatory tendencies.
In the face of the opinions of psychiatrists on both sides that O’Beirne probably is not now committable under the civil procedures, the argument that he should not be held longer without a civil commitment is the familiar contention of those who “want to have it both ways.” To yield to that view would mean that sociopathie personality disturbance constitutes a valid defense to a criminal charge but is not a basis for hospital confinement under § 24-301. However, whether O’Beirne is now committable under civil proceedings is not the issue. Congress has prescribed a procedure, this court has construed the statute, and we are not free to use a different procedure unless we are prepared to hold § 24-301 violates the Constitution. Ragsdale v. Overholser, note 6, supra.
Reversed.