¶1filed the following dissenting opinion, in which Hammond, J., concurred.
¶2The evidence admittedly withheld by the State, in my opinion, could have been of vital importance to the defense of the accused and its withholding constituted a violation of due process of law.
¶3The appellees’ defense to the charge of rape was that their assault upon the white companion of the prosecutrix was provoked by his obscene racial remarks and that the prosecutrix not only consented to intercourse with two of the appellees but suggested it and invited it.
¶4The essential facts established at the post conviction hearing are not in dispute. Detective Lieutenant Whalen of the Montgomery County Police Department, prior to the trial of the appellees, had received a call from the family of the prosecutrix stating that she had been raped by two men in August of 1961, which was about five weeks after the acts for which the appel*476lees were to be tried. The lieutenant had also received information that the prosecutrix had taken a number of sleeping pills and had been taken to the hospital. He had previously known that at one time the mother of the prosecutrix had taken her to see a psychiatrist. Upon receipt of the call as to the alleged rape, Lieutenant Whalen told the prosecutrix’s father to get in touch with the Prince George’s County Police, since the alleged rape had taken place in that county. The State’s Attorney for Montgomery County had also been informed before the trial of the appellees that a complaint had been made in Prince George’s County that the prosecutrix had been raped by other persons after the acts for which the appellants had been charged and he was aware that the subsequent charge had been investigated and dropped. The State’s Attorney had also been informed that the prosecutrix had been hospitalized for taking an overdose of drugs and assumed that she had done so intentionally. None of this information known by the police lieutenant and the State’s Attorney was communicated to the court appointed counsel of the appellees prior to their trial and their counsel had no knowledge thereof.
¶5In Brady v. State, 226 Md. 422, 174 A. 2d 167 (1961), we held that the suppression or withholding by the State of material exculpatory to an accused is a violation of due process even if, as here, the withholding is not the result of guile. In that case, the State contended that the evidence withheld, which was an extra judicial confession or admission by a third party that he had committed the offense for which the defendant was tried, was not admissible. In delivering the opinion for the Court, Chief Judge Bruñe considered the authorities pro and con as to whether or not such a confession was admissible. Without coming to any conclusion as to its admissibility, Judge Bruñe said, for the Court:
“We think that Boblit’s undisclosed confession might have been usable under any of the three rules stated in Thomas, which we have quoted above, and hence could not be regarded as inadmissible and unusable in any manner in Brady’s defense.”
¶6*477Judge Brune’s opinion goes on to say:
“There is considerable doubt as to how much good Boblit’s undisclosed confession would have done Brady if it had been before the jury. It clearly implicated Brady as being the one who wanted to strangle the victim, Brooks. Boblit, according .to this statement, also favored killing him, but he wanted to do it by shooting. We cannot put ourselves in the place of the jury and assume what their views would have been as to whether it did or did not matter whether it was Brady’s hands or Boblit’s hands that twisted the shirt about the victim’s neck. To apply the words of the Supreme Court of the United States in Griffin v. United States, 336 U. S. 704 at 708-709, quoted by the Court of Appeals of the District of Columbia Circuit in its opinion on remand of the case, above cited (183 F. 2d at 992), it seems to us (as it did to the Court of Appeals of the District in Griffin) that it would be ‘too dogmatic’ for us to say that the jury would not have attached any significance to this evidence in considering the punishment of the defendant Brady.
“Not without some doubt, we conclude that the withholding of this particular confession of Boblit’s was prejudicial to the defendant Brady.” 226 Md. at 429-30.
¶7In the words of the Court of Appeals in Griffin v. United States, “when there is substantial room for doubt, the prosecution is not to decide for the court what is admissible or for the defense what is useful.”
¶8In this case, the information withheld by the prosecution, in my opinion, would have been admissible, in whole or in part, on cross-examination of the prosecutrix and was clearly usable in the defense of the appellees. The lodging of a complaint of rape on behalf of the prosecutrix and the subsequent withdrawal of the complaint took place between the alleged offenses of the appellees and their trial. These facts could well have been used to support the claim of the appellees that the prosecutrix consented to intercourse with them and thereafter, as they said *478she had told them she might do, made an unjustified claim that she had been raped.
¶9The withheld evidence of her attempted suicide might well have been used by counsel for the appellees to attack the credibility of the prosecutrix because of mental or emotional illness. While I have not been able to find a Maryland case deciding whether or not testimony of mental illness or emotional disturbance not amounting to insanity is admissible for the purpose of discrediting the prosecutrix in a sex case, there is authority elsewhere holding such evidence to be admissible.
¶10As in Brady, the test is not whether the evidence clearly would have been admissible but whether it must be regarded as inadmissible and unusable in any manner in defense of the appellees. The question of actual admissibility, particularly in a case such as this, can only be passed upon in the context of *479actual cross-examination and proffered testimony. Such cross-examination and additional testimony might well have been admissible and, if admissible, were usable in the defense of the appellees. That is clearly sufficient.
¶11The opinion of the majority holds that the information withheld by the State was not material evidence exculpatory to the appellees. With all deference, it seems to me that my brethren are arguing the weight of the evidence and put themselves in the place of the triers of the facts. While counsel for the appellees knew of prior acts of unchastity of the prosecutrix, the additional withheld evidence might have made possible a far more effective cross-examination than mere knowledge of prior acts of unchastity of itself permitted.
¶12What has been said pertains only to the actual information known to and withheld by the State’s Attorney and Lieutenant Whalen. However, this information, important as it was of itself to the defense, was also usable as the basis for further investigation. Although the prosecution did not choose to investigate further the information which had been received, if that information had been made available to the appellees’ counsel, it would have been a short and logical step for him to pursue what had happened in Prince George’s County after the claim of the alleged rape had been made and after the prosecutrix had been hospitalized there. He could have easily ascertained the additional facts adduced at the post conviction hearing. These facts included the statements of the prosecutrix to Detective Sergeant Wheeler of the Prince George’s County Police that during the preceding two years she had had numerous acts of sexual intercourse with a large number of boys and men, many of whom were unknown to her, and that she had accused two men in the Prince George’s County incident of rape to explain why she took the overdose of pills, although she also told Wheeler that she would refuse to testify against the two men if they were charged with rape. The hospital record of Prince George’s General Hospital showed the diagnosis of attempted suicide by the prosecutrix and the admitting diagnosis of psychopathic personality. An interview with Dr. Connor, who testified in the post conviction hearing, would have readily shown *480that the prosecutrix had been confined in the hospital’s psychiatric ward for nine days.
¶13This additional information would have materially strengthened the usable lines of defense inherent in the information actually withheld by the prosecution. It seems clear to me that the facts which the State knew and did not communicate would have been helpful to counsel for the appellees in pursuing the new important lines of inquiry obviously indicated. The State can not claim the withheld information was unusable by the defense because the prosecution chose to know no more.
¶14The Bradyand Griffinrule rests on basic principles of fairness. If information is withheld by the prosecution and if that information, although not pursued by the prosecution, of itself would have reasonably led to the procuring of information usable in any manner in the defense of the accused, that fact of itself should make the withholding of the uncommunicated matters the basis for a new trial. We are dealing here with capital charges. The appellees were represented by court appointed counsel who, however able and conscientious, could not have the facilities of investigation available to the State. The information withheld would have made the procuring of the further, and possibly vital, information easily obtainable.
¶15The issue before us is not the guilt or the innocence of the appellees but whether, under all the circumstances, the withholding of the information by the State constituted a violation of due process. In my judgment, it clearly did. I would affirm the order of Judge Moorman granting a new trial.
¶16. In Giles v. State, 229 Md. 370, 183 A. 2d 359 (1962), in affirming the appellees’ convictions on appeal, we referred to the conflicting evidence as to consent. The complete transcript of the testimony at the trial was introduced in the hearing under the Post Conviction Procedure Act as a result of which Judge Moorman granted a new trial. The entire testimony at the criminal trial is therefore before us on this appeal.
¶17. Taborsky v. State, 142 Conn. 619, 116 A. 2d 433 (1955). See also United States v. Hiss, (D.C.S.D.N.Y. 1950), 88 F. Supp. 559. Contra. Garrett v. Alabama, 268 Ala. 299, 105 So. 2d 541 (1958).
¶18. In People v. Bastian, 330 Mich. 457 (1951), it was held that on a trial for statutory rape the trial court was in error in sustaining an objection to a line of cross-examination which counsel for the defendant said would tend to establish that the prosecutrix was a sexual psychopath. The Supreme Court of Michigan held that the proffered testimony was relevant to the credibility of the prosecutrix, particularly if sufficient to indicate that she was a nymphomaniac. People v. Cowles, 246 Mich. 429, 224 N. W. 387 (1929) is to the same effect.
¶19“Occasionally is found in woman complainants, testifying to sexl offences by men, a dangerous form of abnormal mentality,—dangerous here, because it affects testimonial trustworthiness while not affecting other mental operations. It consists in a disposition to fabricate irresponsibly charges of sex-offences against persons totally innocent. The genesis and operations of this quality are sufficiently shown in the passages quoted ante, § 924a (character for chastity). Sometimes it is associated with unchaste conduct'in the witness, sometimes not. But its nature is well known to psychiatrists and is recognizable by them. Testimony to its existence in an individual should always be receivable.” Wigmore on Evidence, § 934a (3rd ed. 1940).
¶20. Testimony that a witness has been confined in a mental hospital has been held admissible on the issue of credibility. Walley v. State, 240 Miss. 136, 126 So. 2d 543 (1961); People v. Kirkes (Cal. Dist. Ct. App. 1952) 243 P. 2d 816.