(dissenting in part).
In part II of the opinion the court takes the position that after the March 1952 judicial determination, pursuant to 18 U.S.C. § 4244, that the accused was then mentally incompetent to go to trial, a further judicial determination, of competency, was required by statute before his trial a year later. The court relies upon Gunther v. United States, 94 U.S. App.D.C.-, 215 F.2d 493, decided July 1, 1954.
The determination of incompetency in March 1952 was the result of proceedings initiated by motion filed pursuant to 18 U.S.C. § 4244. See Perry v. United States, 90 U.S.App.D.C. 186, 195 F.2d 37. Such motion was for a “judicial determination” as to the accused’s mental competency; when that determination, to the effect he was then incompetent to stand trial, was made, the purpose of the motion was fulfilled. It was no longer pending. A period of hospitalization at St. Elizabeths Hospital followed. Then came the certification of its Superintendent, in February 1953, that the accused was of sound mind, after which he was brought to trial.
Proceedings for a judicial determination under § 4244 are initiated only by motion of the United States Attorney, or of defense counsel, or of the court sua sponte. At the trial accused was represented by the same able counsel who had initiated the § 4244 proceedings in 1952. He did not move for another inquiry as to competency. Nor did the United States Attorney. Nor did the court. The record shows that all were fully aware of the 1952 determination of incompetency.
The case of Gunther v. United States, supra, is illustrative of a situation which calls for another inquiry before trial; but I think this is not so, as the court there held, because of a requirement of the statute itself, no motion under it for further inquiry having been made. It is so because, apart from statute, proper administration of the criminal law called for another inquiry in the factual situation presented. See excerpts from the legislative history quoted in the court’s Gunther opinion. My difficulty is that the opinion grounds the necessity for a further judicial determination upon the statute itself.
The statute prescribes its method of raising the issue of competency; that is, as above set forth, by motion.1 The court adds a provision, not inserted by Congress, to the effect that where there has once been a judicial determination, of incompetency, another, of competency, is a statutory requirement in any and all circumstances, before a trial can be had, notwithstanding evidence of restoration to competency accepted as satisfactory by counsel for the accused, by the United States Attorney, and by the court, none of whom invokes by motion the available statutory provisions for a further inquiry.
The Gunther opinion, furthermore, contains I think two inconsistencies with the statute it purports to follow. In the first place, in relying upon the original motion as if it were still pending, the court nevertheless ruled that the case could go to trial after a determination not based upon the only kind of hearing such a motion leads to once an adverse report by a court appointed psychiatrist has been made, as was there done. In the second place, in the situation there assumed by the court to exist, namely, an effective motion before trial, the stat*330ute requires that the judicial determination precede the trial. Perry v. United States, 'supra. Nevertheless, the court did not grant a new trial so that the determination of competency might precede it, but held that such determination might be made long afterwards, thus assimilating § 4244 proceedings to those under § 4245.2 *****8
. In not reversing and remanding for a new trial in Gunther, under the procedure adopted in Perry, the court seeks to distinguish Perry on the ground that no previous determination of incompetency had there been made and hence there was no medical certificate of recovery and competency to stand trial. It seems to me that the determination of incompetency in Gunther is a more compelling reason for following the Perry procedure than existed for its original adoption, which nevertheless I think was sound,
. After trial the issue may be raised in accordance with the provisions of 18 U.S.C. § 4245.