Eastwood, Jayne and Clapp. The opinion of the court was delivered by Eastwood, S.j.a.d.
Following a trial by jury, the defendant was convicted of carnal abuse on January 29, 1952. Under authority of N.J.S. 2 A:164-3, he was sent to the State Diagnostic Center at Menlo Park for an examination and a report thereof was furnished to the court. Pursuant to recommendation of the Diagnostic Center, the defendant was committed to the New Jersey State Hospital at Marlboro, where he was received on April 18, 1952.
On June 19, 1953, under the authority of N.J.S. 2 A:164-6, the Commissioner of Institutions and Agencies directed the transfer of defendant to the New Jersey State Prison at Trenton. To date, the Special Classification Review Board, appointed pursuant to N.J.S. 2 A:164-8, has not recommended to the State Parole Board that defendant be released under parole supervision.
The appellant contends that his present confinement is illegal because it resulted from a transfer to New Jersey State Prison from an original commitment to a mental institution, and further, that he was not recalled by the sentencing court at the time of his transfer to State Prison and a minimum and maximum term imposed as required by N.J.S. 2 A:164-17. He applied to the Middlesex County Court for a writ of habeas corpus , and from a denial thereof he takes this appeal.
The legislative authority under which the defendant's case was considered and determined is L. 1950, c. 207 (N.J.S.
2 A:164-3 et seq.), which replaces L. 1949, c. 20. The enactment concerns itself with certain crimes commonly referred to as sex offenses and establishes a procedure for dealing with persons guilty of these crimes. The legislation was prepared by the Commission on the Habitual Sex Offender and incorporates recommendations of that Commission made after an exhaustive study of the problem. We find the title of the enacting legislation to be indicative of its nature and purpose. It concerns "the disposition of persons convicted of certain enumerated sex crimes and * * *" provides for, "sentence, incarceration and treatment * * *" therefor. Generally, every sex offender may, in the discretion of the court, be subjected to a mental and physical examination and if it be found that the offender's conduct is characterized by violence, repetitive or compulsive behavior or certain age disparity (N.J.S. 2 A:164-5), the court's disposition shall be controlled by N.J.S. 2 A:164-6. One of the alternatives and the one selected in the matter sub judice , is:
"(b) Such person may be committed to an institution to be designated by the Commissioner of Institutions and Agencies for treatment and upon release shall be subject to parole supervision.
In the event that the court shall order a commitment of the person as provided in this section, such order of commitment shall not specify a minimum period of detention, but in no event shall the person be confined or subject to parole supervision for a period of time greater than that provided by law for the crime of which such person was convicted."
Thereafter, the offender is under the jurisdiction of the Commissioner of the Department of Institutions and Agencies, for treatment and transfer.
If the results of the offender's diagnostic examination do not show conduct characterized by the pattern referred to in N.J.S. 2 A:164-5, the court is directed to impose sentence on such person as provided by law. (N.J.S. 2 A:164-9).
We discern a distinction in the method of handling of the offender dependent upon the results of the diagnostic examination. Where the conduct is characterized by certain specified patterns ...