dissenting:
In 1881 Mr. Justice Holmes pointed out in his Lectures on the Common Law, “The life of the law has not been logic: it has been experience.” I do not fault the logic by which my brothers determine that a reasonable judge, situated as was the trial judge here, would not have been troubled by doubt with respect to Gilbert’s competency to stand trial. However, the juristic experience supplied by the history of United States v. Ives, C.A. 9th, 504 F.2d 935, 946-953 (1974), vacated and remanded, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), remanded 547 F.2d 1100 (1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977), reversed 574 F.2d 1002 (1978), convinces me that this determination will not withstand federal constitutional attack.
That ease like this was originally decided on the basis that the probative effects of a prior psychiatric report of incompetence to stand trial and a finding of such incompetence after a hearing were completely dissipated by the later certification of competency to stand trial made in a report from the psychiatric institution to which the defendant had been committed. Further extensive judicial mastication resulted in a new decision indicating that the first report and finding were sufficient to place the trial judge on notice that there was a reasonable question of the defendant’s competency to stand trial which could only be answered by an evidentiary hearing.
I would vacate the judgment and remand the case to the trial court with directions to hold an evidentiary hearing and determination of Gilbert’s mental competence to stand trial at the time trial was held. If he was mentally competent the judgment should be reentered. If he was not competent, an evidentiary hearing and determination of his present mental competency to stand trial should be had. If he is found competent he should be tried again. If he is found incompetent he should be dealt with as provided in KRS 504.040(2).
This disposition would do no violence to our decision in Hayden v. Commonwealth, Ky., 563 S.W.2d 720, 722-723 (1978), because in this case psychiatric evidence based upon examinations conducted close to the trial date would insure that the nunc pro tunc hearing would not be unduly speculative. Bowers v. Battles, C.A. 6th, 568 F.2d 1, 4-5 (1977); Harkins v. Wyrick, C.A. 8th, 552 F.2d 1308, 1311-1313 (1977); United States v. Makris, C.A. 5th, 535 F.2d 899, 904-905 (1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 803, rehearing denied, 431 U.S. 909, 97 S.Ct. 1707, 52 L.Ed.2d 394 (1977).