with whom Mr. Justice Hernández Matos and Mr. Justice Dávila concur, dissenting.
San Juan, Puerto Rico, June 6, 1968
According to the record of Criminal Case No. G-61-619, of the Superior Court, San Juan Part, for murder, against Rigoberto Molina Santana, there appear the following facts:
(1) On June 8, 1961 information of murder was filed against Molina Santana, because on April 24, 1961, with malice aforethought, a firm and deliberate intent and purpose to kill, showing an abandoned and malignant heart, he caused the death of Guadalupe Cruz Díaz, a human being, with a knife.
(2) On July 19, 1961 Molina Santana appeared for arraignment, assistance of counsel was provided for said act, he pleaded not guilty and requested trial by jury.
(3) On November 22, 1961, through his counsel, Mr. C. H. Juliá, defendant moved for the continuance of the trial *198which had been set for the 27th- of that month, because Molina Santana was under psychiatric treatment in the Veterans’ Administration, and he was not in a condition to appear at the hearing. On this date the trial was continued by reason of nonappearance of the defendant, his arrest was ordered, and the hearing was set for March 12, 1962.
(4) Attached to the record and dated November 29,1961, there appears a certificate of the Veterans’ Administration, addressed to Judge Carreira Más, establishing that Rigoberto Molina Santana was under treatment in the Mental Hygiene Clinic of said institution, as an outpatient.
(5) According to the minutes, on March 12, 1962 and on motion of the defense, the court ordered to summon a panel of medical experts composed of Drs. Señeriz, Valderrábano, and Galindez, of the Psychiatric Hospital, to appear on March 19, to perform a psychiatric examination on .the defendant to determine whether he could stand trial. Appellant did not appear on said date.
(6) On April 2, 1962, the panel of expert psychiatrists met and after examining defendant they reached the conclusion that subsequent successive examinations were necessary to determine his mental condition before going to trial. His confinement in the Psychiatric Hospital was ordered for that purpose.
(7) On April 2, 1962, Drs. Señeriz, Valderrábano, Ga-lindez, and Tejedor Pascual, determined that after examining the defendant, they reached the conclusion that due to the scarce cooperation of the former and the doubts raised by the exhibition of his symptomatology, they recommended subsequent and successive visits for the purpose of determining with full certainty whether he could stand trial. With a view to this report, on April 9, 1962, the court ordered defendant’s confinement in the Psychiatric Hospital, to which he was transferred from the District Jail of San Juan.
*199(8) On May 3, 1962, the expert psychiatrists concluded that on that day the defendant could stand trial and could answer for the offense or offenses charged against him. The case was set for trial on June 8, 1962, when it was continued for the 12th of the same month.
(9) It appears from the minutes that on June 12, at the request of the defense, Drs. Galíndez, Señeriz, and Tejedor, examined defendant and determined that on that day he could stand trial. Right afterwards, (a) the defendant waived his right to a trial by jury; (b) he was arraigned for felony; (c) the prosecuting attorney asked for leave of the court to reduce the degree of the offense to murder in the second degree; and (d) the degree having been reduced, defendant pleaded guilty. It appears from the minutes that the plea of guilty made by defendant’s counsel was ratified by defendant, and the court admitted it because in its opinion it was free and voluntary. The minutes do not show, nor have we a stenographic transcript of the proceedings in case G-61-619, any fact which might reveal what elements the trial court had at that time to reach the conclusion that the right to a trial by jury was waived freely and voluntarily.
(10) On June 18, 1962, Molina Santana was ordered to serve from 10 to 15 years in the penitentiary in the case of murder, and six months in jail in the case for bearing weapons. This is the evidence in the record of the case of murder G-61-619.
On November 18, 1963, after a little over one year had elapsed, Molina Santana filed a petition for habeas corpus in the Superior Court, San Juan Part, and alleged (1) that he was illegally deprived of his liberty because he did not have adequate assistance of counsel in violation of the due process of law, and (2) that the court accepted the plea of guilty, knowingly or by mistake, that the same was not made “intelligently, since defendant was not in a condition to make an intelligent plea of guilty since he was suffering a mental *200disorder/’ and that said plea of guilty did not have any legal validity whatsoever.
After the writ was issued and the evidence was heard, the Superior Court, San Juan Part, set aside the writ on the following findings:
“Findings op Facts
On June 12, 1962 and before Baldomero Freyre, petitioner appeared for the hearing on the merits of cases G-61-619 and M-61-823, against petitioner herein, for the offenses of murder and carrying of weapons. Defendant was represented by Mr. Charles H. Juliá. A panel of medical experts determined that defendant could stand trial. After this determination, defendant, represented by Mr. Juliá, pleaded guilty of the offenses of murder in the second degree and carrying of weapons. Subsequent to this act defendant was sentenced.
Conclusions op Law
Petitioner had adequate assistance of counsel in the aforementioned cases. He was mentally competent when he pleaded guilty. His imprisonment is, therefore, lawful.
The petition for Habeas Corpus is denied.
Let it be notified.
Issued in San Juan, Puerto Rico, August 12, 1964.”
This petition is Molina Santana’s appeal from the foregoing decision.
Before proceeding further, it is proper to note that the trial court limited its previous pronouncement to the fact that petitioner had had adequate assistance of counsel and that he was mentally competent when he pleaded guilty. Obviously, the court referred to the fact that the expert psychiatrists had determined that on that day appellant could stand trial.
The analysis of the evidence as a whole and the other attendant circumstances constrain me to conclude that the question to be decided, in the light of said evidence and *201circumstances, delved more deeply into the fundamental aspect of the due process and the guarantees of the citizen, of whether said plea of guilty was free and spontaneous and was not due to other considerations which could have influenced the mind, unquestionably deranged, of the defendant. There is a.difference between the fact that the expert witnesses stated that that day defendant could stand trial— if he was in a condition in which he could rationally understand his prosecution — and the other fact of waiving, with the proper understanding and without pressure or influence of any kind whatsoever, an extremely important constitutional right such as the adversary proceeding, which mechanism, aided by the confrontation of witnesses and opportunity of cross-examination, constitutes now more than ever, as has been said, and even when the absolute truth is not disclosed, the best way to elucidate the truth of certain facts in furtherance of justice.
The record, previous to said plea of guilty, as it appears from the transcript of the oral evidence, in addition to the evidence in the record to which I have referred at the beginning, is as follows:
According to the medical records in the Veterans’ Administration, petitioner was confined in Clínica Juliá in 1949 and was pensioned due to a condition of schizophrenia connected with his military service. He was compensated on a basis of 100% mental disability. In 1960 he received outpatient treatment in the neuropsychic clinic of the Administration. From March 7 to 11, 1961 he was confined in Clínica Juliá due to his schizophrenic condition.1
In 1955 and 1956 he had been submitted to psychiatric examinations, resulting in a diagnosis of “psychotic reaction, psychotic personality.”
*202The examination of May 9, 1963 (subsequent to the criminal acts and subsequent to the proceeding) showed a schizophrenic reaction.2
Petitioner testified that he has been receiving a 100% veterans pension for a long time and it has never been withdrawn. He has a guardian. When asked why he had pleaded guilty, he answered:
(R. p. 15)
“Because my attorney told me that I was going to be condemned to life imprisonment and Dr. Galindez told me to mind him or I would rot if I were' pronounced crazy.
Q. Were you afraid?
A. Sure.”
Petitioner admitted he was examined that day to determine whether he could stand trial. He did not remember how long the examination lasted; it was performed in the prison cell and Dr. Galindez gave him a pill.3
. Petitioner testified that on his counselor’s advice he had accepted to plead guilty “in the manner he told me I accepted it, or . . . .” (R. p. 38.)
Further on, when examined by the prosecuting attorney (R. p. 46) :
“Q. And whoever were there that day and had examined you on that day, did they again report to the court that you could stand trial?
A. Yes, sir, they said so.
Q. And that was what you understood before pleading guilty?
A. Yes, naturally, I was informed.
Q. That is, that that day you could tell between right and wrong for all purposes, and you could help your attorney?
A. I was prepared in advance with what my attorney had told me, I knew I was in for it.
*203Q. Did you talk to him?
A. Not I, but I remember that my counsel did.
Q. I ask you whether you did not say here this morning that psychiatrist Galindez, what did psychiatrist Galíndez tell you?
A. To mind my counsel’s advice and to accept ten to fifteen years, which was better than to be confined in the insane asylum for life.”
(R. p. 48.)
(Prosecuting Attorney)
“Q. And let us come now to. those examinations, when they examined you, did the psychiatrists ask you anything ?
A. Well, questions, but I cannot remember what they asked me.
Prosecuting Attorney:
' Let him indicate that fact.
Witness:
A. Judge, first they asked me .what date is today, who is the president of the United States, who is the governor of Puerto Rico; well, sure I know Luis Muñoz Marín.
Q. Then, as to the day of the facts, the day you pleaded guilty, you pleaded guilty, first, because according to you they promised you from 10 to 15 years, and second, because you thought you were guilty?
A. No, sir, I never thought I was guilty of the crime committed, not even now.
Q. Then, you do not think you are guilty of the crime committed?
A. I do not deny I committed it, but I am not guilty of my acts.
Q. You do not deny you committed it, but you say you are not guilty?
A. No.
*204Q. I want to know how you harmonize your statements that you committed the crime and that you-did not commit it.4
A. I can inform the court how I committed it; I left Clínica Juliá on my own account and as soon as I reached my house I started to see animals behind me.5
Q. Was it not a woman?
A. That explains it and I heard her saying dead or alive, and then, first, she hit me and I fired and when I awoke in the house I was told that I had killed a person, but I did not realize it; it was not premeditated, I have never killed, except in the army, because it was my duty.
Q. And you were carrying a knife?
A. My friend took it from a counter.
Q. How do you know he took the knife from the counter?
A. The patient has conscious lapses when he can remember.
Q. You complain that you were sentenced to serve from 10 to 15 years, not that you were sentenced to pay 900 dollars?
A. Actually, I did not commit the crime nor premeditated it, because as a veteran I fought three years in the battlefield; it should be taken into consideration that Castañeda was sentenced to serve from 10 to 15 years concurrently, and I, who am sick, should be sentenced to serve less than that; I asked the attorney to fight the case . . . the doctor tells me to mind the advice or you will rot in the psychiatric hospital ... I told the doctor that if I were sentenced to life imprisonment, I would commit suicide.”
(Defense) (R. p. 54)
“Q. And you killed a person who was a friend of yours.
A. Friend of mine who never did wrong, I am very sorry.”
Mr. Juliá testified as to his professional action in this *205case. He took the cáse many months after the occurrence of the facts,- for which reason he could not order a psychiatric examination of petitioner’s mental condition immediately after the crime was committed, which would be more reliable on account of its proximity to the crime. Petitioner offered a version of the occurrence of the facts and the attorney knew that the witnesses for the prosecution were going to offer a different version.
The record shows that Mr. Juliá was always very diligent in ascertaining that petitioner would not be prosecuted unless he was under the proper mental condition. He requested several psychiatric examinations. However, the report of the latter did not determine whether or not at the time of the commission of the offense, the petitioner was criminally liable. It did not decide the defense of insanity on the merits.'
Dr. Galindez, brought by the prosecuting attorney, testified that in April 1962 he examined petitioner and again on the day of the trial, for the purpose of determining his mental condition to stand trial. It was concluded that on the day of the trial he could be prosecuted.
Upon questions by petitioner he said that he reached the conclusion that on the date of the trial, June 12, there was a “schizophrenic” reaction, paranoid in the remission of symptoms. He explained that by remission of symptoms he meant that certain symptoms present in the patient when he was first examined on April 2, had disappeared. Petitioner’s mental condition was determined on both occasions, April 2 and June 12, 1962, for the purpose of deciding whether or not he could stand trial, not to determine his condition when he committed the crime more than a year before.
Dr. Galindez testified that undoubtedly petitioner could be in a doubtful mental condition when the facts occurred; that in order to answer with more certainty he had to rely on a psychiatric examination more proximate to same; he could say that he might or might not be insane. He could *206not make said determination going back to 1961, although the physician remarked that petitioner’s record showed that he had been insane and he imagined there existed a record of the physicians who had examined him.
It is evident that Dr. Galindez limited his report to the condition as to whether or not he could stand trial, without embracing the aspect of the insanity as defense. However, the stenographic record leaves the strong impression in the proceedings at the trial court that because he was pronounced mentally competent to stand trial, a defense of insanity would be weakened or prove unsuccessful.
According to the record, the testimony as to the plea of insanity partially copied in the majority opinion, ante, pages 194 to 196, closes as follows: (R. p. 21)
“Q. — Then, to discard the defense of insanity, you took into consideration two factors, the sworn statements of two witnesses that the prosecuting attorney had the courtesy to show you6 and the testimony of the psychiatrist who examined him shortly after the occurrence of the facts 7
“A. — As my colleague may see from the record, I did not discard the theory of insanity, I again raised the question of insanity, I did not discard it, the psychiatrists discarded it. If a person can stand trial, that indicates that the question of insanity cannot be raised because the theory is that he can distinguish right from wrong.
“Q. — Then, you made a valuation relying on the fact that when the psychiatrists said that the man could stand trial, that discarded the theory of insanity ?
“A. — In my opinion, yes.
“Q. — That is all, Your Honor.” (Italics ours.)
The petition for habeas corpus was based on the facts that petitioner was not duly represented and that his mental con*207dition rendered him unable to waive his constitutional rights intelligently.
A petition for habeas corpus, after the writ is issued, ceases to be an ordinary proceeding between two parties. It becomes an inquiry which the State itself initiates to examine its own actions in depriving a citizen of his liberty. In such cases the courts are not bound or limited by the specific allegations of a petitioner.
I am firmly convinced that this is not a case of lack of defense or of the attorney’s noncompliance with his duty to his client. No evidence is necessary, since I know from my own knowledge of the ability, experience, and competence of Mr. Juliá in the practice of his profession, as well as of his unquestionable sense of dedication to the causes he defends. Under the circumstances before him he used his honest and best judgment as to the manner of protecting his client in the light of the means available to him.
But this, however, the counselor’s strategy or his view as to the available evidence, is not the fundamental problem presented by this petition. The basic problem is whether the plea of guilty was completely free and voluntary, solely prompted by a conscientious desire to confess judicially the guilt, without petitioner’s deranged mind being influenced when he followed his attorney’s advice at that time, by other considerations which might inspire fear, dread, or convenience.
The record convinces me that it was not a pure act of conscience. Petitioner’s testimony in the sense that Dr. Ga-lindez warned him to mind his counsel’s advice, that it was better to be found guilty than to be pronounced crazy, since then he “would rot” in a psychiatric hospital, was not in any manner contradicted. The prosecuting attorney called Dr. Galindez to the witness stand and the latter had the opportunity to contradict petitioner on that point. He did not.
*208On the other hand, the fact that a psychiatric examina^ tion was not performed proximate to the commission of the crime, did not mortally affect the defense of insanity. As Dr. Galindez noted, petitioner had an extensive record as a mental patient, starting in 1949 with a diagnosis of schizo^ phrenia, ratified in 1955 and 1956, a psychopath, and in March 1961, shortly before the killing. Even after he was sentenced in 1963, he continued to be a psychopath. That extensive record of psychosis which appeared in the records of the Veterans’ Administration and in Clínica Juliá, together with other circumstances, like the apparent absence of motive to kill, could be sufficient ground for a jury, in an adversative trial, to pass on Molina’s criminal liability or his lack of liability.
I only point out the fact that a defense of insanity was not inexistent for petitioner. I am not going to consider, as in the majority opinion, the doctrine and methods to be followed when said defense is raised. In this petition it is not necessary to enter into that field, since having pleaded guilty, the petitioner missed the opportunity to raise the same. This was a plea of guilty agreed upon, undoubtedly, on the basis of what they believed was the best strategy of defense, on the fact that the reduction of the degree of the offense and the threat produced by the “rotting” in the psychiatric hospital, were factors which influenced petitioner’s weak and insane mind.
Under the remedial action now provided by Rule 192.1 of the Rules of Criminal Procedure, adopted pursuant to Act No. 99 of June 2, 1967, it is my opinion that the plea of guilty should be set aside, as well as the. sentence, and Molina Santana should be granted a plenary suit.
If he did not incur criminal liability in killing, the correct sense of justice tells me that neither he nor his children should bear the disgrace of a criminal conviction, even though he spend his life in a psychiatric hospital, or *209until' he is cured, if he actually killed without liability.
The statement that in this case there was no substantial negation of justice seems unreal to me where, under the circumstances of this case, a mentally deranged, citizen has been deprived of the highest value of criminal justice, the plenary trial on the merits of his guilt or innocence.
The episode which could have resulted in said confinement was proximate to the commission of the offense on April 24, 1961.
“Catatonic.”
The minutes of the day of the trial state that Dr. Galindez examined the petitioner and found that he could stand trial. The parties stipulated that that would be the opinion of Drs. Señeriz and Tejedor.
On this apparent contradiction precisely relies the crucial point under consideration, based on the lack of criminal responsibility by reason of the mental irresponsibility.
The medical records show that petitioner was confined in Clínica Juliá from March 7 to 11, 1961, without stating how he left the hospital. Petitioner says that he left on his own account. The crime was committed on April 24, a short time later.
They were not expert testimony.
This examination, which it is said was performed at the request of the prosecuting’ attorney, was not brought by him at the hearing for habeas corpus, although it was requested.