(dissenting).
The court reaches affirmance by holding that an ultimate determination on the issue of mental competency to stand trial arises “directly from the evidence without the interposition of separate supporting findings.”1 I think this holding erroneous and contrary to decisions in other circuits.2 The elimination of § 2255’s requirement for findings in this case seriously endangers the administration of the statute. The issue of com.peteney to stand trial is not sui generis. It is indistinguishable in this respect •from other issues reviewable under § 2255 — as, for example, whether the prisoner competently waived counsel.3
Jurisdiction exists under § 2255 to entertain a collateral attack on the issue of mental competency to stand trial because, as we said in Sanders v. Allen, conviction of any person lacking such competency “violates certain immutable principles of justice which inhere in the very idea of free government.” 4 Section 2255 directs that “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 5 “The issue was competency,” as this court says, 223 F.2d 587. This court holds that the trial court need only determine the issue. The statute says it must determine the issue and make findings of fact.
In the present case, notice was served upon the United States Attorney, a hearing was held at which no evidence was introduced, and the court made findings of fact and conclusions of law. Plainly, it did not conclusively appear that appellant was entitled to no relief. Accordingly, the trial judge made two findings bearing upon appellant’s mental competency to stand trial: one purporting to support the ultimate determination, set forth in a conclusion of law, that appellant was of “sound mind”;6 the other contrary thereto. Since both findings are drawn solely from the written evidence, “we are as able as [the trial judge] *589to determine credibility.” 7 Hence our consideration of these findings is not weighted by the trial court’s assessment of credibility. So viewed, I think the only supporting finding is clearly erroneous. I therefore conclude that in the absence of any finding to support the trial court’s ultimate determination, the case must be reversed and remanded for further proceedings.
I.
The finding, upon which the trial judge solely relied for his ultimate determination, is clearly erroneous because it is based upon an erroneous reading of the written report of Dr. Evans, a psychiatrist :
Finding of Fact No. 3: “A mental examination of the prisoner was made by Dr. A. B. Evans, M. D., October 11, 1938, approximately two weeks before trial, which reflects his opinion that prisoner was of low mentality but could discern no symptoms that would suggest a mental disorder and was competent to stand trial.”8
Dr. Evans’ report does not deal with the question of appellant’s competency to stand trial. It states, inter alia, that appellant was taken out of school at the age of 14 or 15 when he was in the fourth grade, that he stayed in one grade four or five years, that his mother and sister died from poison which they took, and that he did not believe he killed his wife. It cites examples of the patient’s answers to simple questions: “He [the patient] said three plus seven plus nine equals 20. In naming the months of the year he omitted two. Could not give the significance of any holiday. He could give the day of the week and year but not the month [presumably at the time of the examination]. He wrote his name, which was very legible.” No mention is made of any possibility that the patient was feigning ignorance and malingering. The report concludes as follows:
“This man has no delusions, hallucinations, nor anything that would be suggestive of a mental disorder. He is however of rather low intelligence. He has been very shiftless and has always made a very poor economic adjustment when not supervised by his family. There is a suggestion that this patient is somewhat feeble-minded, probably in the high grade moron group. I am having a psychometric examination made in order to determine his exact mental age. It is felt that this is not of sufficient degree to affect his responsibility.”
In finding a “suggestion that [appellant was] somewhat feeble-minded,” Dr. Evans indicated that a final determination would await completion of a psychometric examination. Therefore, his statement that appellant’s feeble-mindedness was “felt * * * not [to be] of sufficient degree to affect his responsibility” was tentative, pending the outcome of the examination. Since the outcome does not appear in the record, and Dr. Evans’ impression remained tentative, his statement was entitled to little or no weight in the present inquiry.
*590More important, there is nothing in the report or in the record to indicate what Dr. Evans meant by “responsibility.” That term commonly refers to mental condition at the time of the offense, not competency to stand trial. “Responsibility” in that sense is pertinent only upon a plea of insanity at the trial as a defense to the crime charged; and the tests then applicable in this jurisdiction were the “right and wrong” and “irresistible impulse” tests. Competency to stand trial depended, and still depends, upon very different considerations; the ability of the accused to understand his situation and assist in his defense.9
The only other finding of the trial judge relating to the issue of appellant’s mental competency to stand trial supports an ultimate determination contrary to the one the trial judge reached:
Finding of Fact No. 5: “There is evidence, based upon expert opinion that the prisoner was of unsound mind at the time that the offense was committed, and for approximately twelve years after his conviction.”
This finding is drawn from the affidavits of two psychiatrists. The first, made by Dr. Elmer Klein, is dated December 27, 1939 — a little more than a year after trial — and provided the basis upon which the District Court ordered the lunacy inquisition which resulted in the adjudication of insanity in May 1940.10 This affidavit does not contain any conclusions respecting criminal responsibility or competency to stand trial since it was intended merely as a basis for institution of a lunacy inquisition and for that purpose such matters are not pertinent. Instead, it merely states, in pertinent part, that the affiant made an examination and “gave the said Edward B. Bishop a psychological test, that as a result of this examination and test [affiant] is of the opinion that said Bishop is suffering from gross mental deficiency, that he has the mentality of an eight year old child, that in addition to his feeble-mindedness he is suffering from insanity as well * * While it is not made perfectly clear whether this determination of exact mental age was based upon the sort of psychometric examination which Dr. Evans’ report contemplated, the context strongly indicates that it was.
The second affidavit was made by Dr. Winfred Overholser, Superintendent of St. Elizabeths Hospital, to which appellant was committed upon his adjudication of insanity in May 1940. Although this affidavit is dated February 16, 1954, it is based upon close expert observation of appellant for a twelve-year period, commencing with his commitment to the Hospital until his release therefrom to the District jail in October 1952. This affidavit, like all the others in the record, states no opinion regarding appellant’s competency to stand trial when he was tried and sentenced. But it concludes that in the opinion of the affiant, appellant “was suffering from mental disorder of such degree and nature as to render *591him legally insane” at the time of the crime.
While Dr. Evans’ report, which was based upon a single examination, disclosed “no delusions, hallucinations, nor anything suggestive of a mental disorder,” Dr. Overholser’s twelve-year hospital study disclosed, inter alia, that appellant had “convulsive seizures from early childhood [which] had gradually lessened in frequency * * * [and] were supplanted during the more recent years by what appeared to be petit mal seizures and possibly visual hallucinations. He could not progress beyond the second year of grade school, and had always been regarded as a defective. * * During the early part of his residence in this Hospital, he was diagnosed as a case of psychosis with mental deficiency.” I*********11
I do not understand how it can be assumed that the “feeble-mindedness [and] insanity,” which Dr. Klein diagnosed about a year after trial and which was confirmed shortly thereafter by the St. Elizabeths diagnosis of “psychosis with mental deficiency,” was significantly different at the time of trial.
II.
As I have already pointed out, the trial judge recognized that because it did not conclusively appear from “the motion and the files and records of the case * * * that [appellant was] entitled to no relief * * he was required by § 2255 to make findings of fact and conclusions of law. Nevertheless, this court refuses to decide whether his conclusion of law— that appellant was of “sound mind” when tried — is supported by his findings of fact. It avoids such a decision by treating the conclusion as a finding of fact and one of such a special character that it may be supported directly by any evidence in the record without the interposition of supporting findings. But § 2255 requires findings of fact with respect to “the issues.” It makes no exception. And this court offers neither reasoning nor authority for making an exception of the issue of mental competence. Based upon this view, the court then concludes that supporting findings would amount to no more than a recitation of the evidence. “A trial judge”, it says, “is not supposed to recite the evidence upon which he bases a finding.”12 But when the court refers to the evidence for support of the ultimate determination made below, it not only recites the evidence but draws fresh inferences therefrom. These inferences, of course, are original supporting findings of fact.
Thus, referring to the transcript of the trial proceedings in 1938 and the bill of exceptions filed on the appeal from the conviction, the court declares that the “character of Bishop’s own testimony at the trial was convincing evidence of his then-capacity to undergo trial and to assist in his own defense.”13 Not only is this an inference from, rather than a mere recital of, the evidence, but these records were not before the trial court. They were in Archives at the time of the § 2255 hearing.14 The court also refers to a letter, from the district judge who presided at the trial to the pardon attorney, which was written about fourteen years after the trial and in which the *592judge recommends commutation of the death sentence because “it seems probable that [Bishop] will not recover his sanity as long as the death sentence stands, and * * * therefore, it seems cruel to let that sentence stand.” From this letter and the fact that some months after it was written Bishop was declared sane by St. Elizabeths Hospital authorities, this court draws the inference “that Bishop’s mental difficulty might well have been a prison psychosis caused by the shadow of the death sentence” and “fails to indicate incompetence at time of trial.” 15
There is serious doubt that any judge - — trial or appellate — should draw such inferences from such 'evidence, without the assistance of expert psychiatric .opinion. But even if such inferences can be drawn without such assistance, it seems clear to me that they should not be drawn in the first- instance by appellate judges. In Kelley v. Everglades Drainage District, the Supreme. Court held a bankruptcy court had not made findings of fact as required by Rule 52(a), Federal Rules of Civil Procedure.16 After listing appropriate facts which might have been considered but, like the missing facts here, were “nowhere referred to in the opinion or findings below * * the Court- said:
“ * * * It may be that adequate evidence as to these matters is in the present record. On that we do not pass, for it is not the function of this court to search the record and analyze the evidence in order to supply findings which the trial court failed to make. * * * We hold * * * that there must be findings, stated either in the court’s opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion.”17
In Michener v. United States, the Eighth Circuit -ascribed the following purposes to § 2255’s requirement of findings: “(1) to enable the appellate court to -determine the grounds upon which the trial court reached its decision; (2) to enable the defeated party to determine whether the case presents a question worthy of consideration by the-appellate court; and (3) to spare the appellate court the necessity of searching the record in order to supply findings of fact.” 18 It is evident that none of these purposes is served by a naked conclusion that appellant was of sound mind when tried.
Another reason for requiring findings here is suggested by our decision in Quinn v. United States. There we were urged to affirm a criminal conviction on a ground not considered below. Although all the evidence bearing upon that ground was included in the record on appeal, we declined to make an original finding of fact, an important reason being that
“ * * * one 0f ^he substantial rights accorded a criminal defendant by statute in the federal courts is the right of appeal. Were this court to affirm the conviction on a finding not considered below, the defendant would in effect be deprived of that right, for our finding, in the first instance, on the main issue, would be subject to review only on the grant of certiorari by the Supreme Court.”19
The findings which this court makes are, at least, doubtful. Yet they can be *593reviewed “only on the grant of certiorari by the Supreme Court.” Patently, this diminishes the right of appeal to the court of appeals which is specifically conferred by § 2255.20
I would reverse and remand with directions to make findings as required by the statute. And because, as I have tried to show, the evidence presently in the record is an inadequate basis for a rational determination on the issue of appellant’s competency to stand trial, I would also direct that the parties be given the opportunity to present additional evidence. And if, for example, the trial court were to determine that appellant had an eight-year-old mentality, it could then require submission of the sort of evidence essential to a factual determination of the question whether this circumstance, alone or in combination with others, deprived appellant of the capacity to stand trial, considering, of course, the specific nature of the charges against him.
. Majority opinion, 223 F.2d 587.
. See Michener v. United States, 8 Cir., 1949, 177 F.2d 422; and United States v. Cook, 7 Cir., 1953, 208 F.2d 114, holding that determinations under 28 U.S.C. § 2255 must be supported by findings of fact.
. See Michener v. Johnston, 9 Cir., 1944, 141 F.2d 171, where in a habeas corpus case the court remanded for appropriate findings on the question of waiver of counsel, although the trial court had stated as a conclusion of law that there had been a waiver.
. 1938, 69 App.D.C. 307, 310, 100 F.2d 717, 720.
. 28 U.S.C. § 2255 (1952), emphasis supplied.
. Conclusion of Law No. 3: “Because prisoner was of sound mind he was not subjected to the hazards and jeopardy of trial by jury in violation of the due process clause of the fifth amendment to the federal constitution.”
. Dollar v. Land, 1950, 87 U.S.App.D.C. 214, 218, 184 F.2d 245, 249, quoting from Orvis v. Higgins, 2 Cir., 1950, 180 F.2d 537, 539. Sec United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.
. Under § 2255 “the filos and records of the case” may be consulted by the court in determining whether the movant is entitled to relief. This report, although included in the record on appeal, was not, as Government counsel represented to the trial court, a “part of the Oourt file.” This report, dated October 11, 1938, and addressed to the then United States Attorney is not stamped as filed with the court, nor is its filing noted on the sheet of docket entries in the case. It bears only a stamp indicating its receipt by the United States Attorney’s olliee together with that office's file number. Since it was not a “part of the Court file,” prior to the filing of the motion under § 2255, and was not admitted in evidence thereafter under applicable safeguards, its consideration by the trial judge was error.
. In Brewer v. Hunter, 10 Cir., 1947, 163 F.2d 341, 344, the Court of Appeals, in holding that the evidence adduced in a habeas corpus proceeding adequately established that appellant was mentally competent when tried, observed that the applicable test was whether “he is capable of distinguishing between right and wrong at the time and with respect to the act committed.” Subsequently, however, in Moss v. Hunter, 10 Cir., 167 F.2d 683, 685, certiorari denied, 1948, 334 U.S. 860, 68 S.Ct. 1519, 92 L.Ed. 1780, the same court noted “that the applicable test in these circumstances .is whether an accused has the mental capacity to comprehend his own condition with refererence to the accusation pending against him and is capable of rationally conducting his defense.” The court acknowledged its error in the Brewer case, supra, observing that the right and wrong test “although abstractly correct, had no application to the question before us in that case.”
. This affidavit, unlike the report of Dr. Evans, throws light upon the qualifications of the examining doctor. It states that the affiant is “a physician specializing in mental diseases and that he is a member of the District of Columbia Commission on Mental Health.
. Concerning appellant’s recovery after twelve years of hospitalization, the affidavit states: his hospital adjustment and performance over a period of years led to an increasing doubt as to the existence of actual irreversible mental deficiency, in spite of the fact that intelligence tests during the early part of his hospitalization placed him in the mental defective category. On account of the increasing doubt about his being a true defective, he was re-examined in May of 1948, and it was found that at that time his functional level of performance was within normal limits. It was suggested that the discrepancy between the defective test achievement at the time of his admission and normal results in 1948 indicated a strong functional component in his mental illness.
. Majority opinion, 223 F.2d 587.
. Majority opinion, 223 F.2d 585.
. They left Archives for the first time in December 1954 when requested by this court long after the appeal had been argued.
. Majority opinion, 223 F.2d 586.
. 1943, 319 U.S. 415, 63 S.Ct. 1141, 87 L.Ed. 1485. In Michener v. United States, 8 Cir., 1949, 177 F.2d 422, 424, the court compared the finding requirement of Rule 52(a) with that of § 2255.
. 319 U.S. at page 421-422, 63 S.Ct. apage 1145. See also Interstate Circuit, Inc., v. United States, 1938, 304 U.S. 55, 56, 58 S.Ct. 768, 769, 82 L.Ed. 1146, where the Supreme Court held that statements in the decree of the District Court were “but ultimate conclusions and did not dispense with the necessity of properly formulating the underlying findings of- fact.” The Court made no attempt to resolve these underlying factual issues but remanded the case for appropriate findings of fact and conclusions of law.
. 177 F.2d at page 424.
. 1952, 91 U.S.App.D.C. 344, 349, 203 F.2d 20, 25, certiorari granted, 1954, 347 U.S. 1008, 74 S.Ct. 861.
. Section 2255 provides:
“An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.” The district court’s factual determinations are reviewable on appeal from the denial of habeas corpus relief. See e. g., Johnson v. Sayre, 1895, 158 U.S. 109, 115-116, 15 S.Ct. 773, 89 L.Ed. 914; Von Moltke v. Gillies, 1948, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309; cf. United States ex rel. Kassin v. Mulligan, 1935, 295 U.S. 396, 402, 55 S.Ct. 781, 79 LEd. 1501.