Duke v. Director of Patuxent Institution

⁶⁵² 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