A rehearing before the court en banc was ordered by a majority of the judges of this Circuit, 28 U.S.C.A. § 46(c), to settle the questions upon which the judges composing the original panel were in disagreement. See Howard v. United States, 5 Cir., 229 F.2d 602.
As to the most important question, the proper test of criminal responsibility where insanity is asserted, we note that the Court of Appeals of the District of Columbia has heretofore taken the position that the Supreme Court in Davis v. United States, 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750, at least impliedly recognized the test as being either the incapacity from some mental disease or defect to distinguish between right and wrong with respect to the act, or the inability from such disease or defect to refrain from doing wrong in the commission of the act,1 and that its decision so indicating has been cited with apparent approval by the Supreme Court.2 See also, Matheson v. United States, 227 U.S. 540, 543, 33 S.Ct. 355, 57 L.Ed. 631; Weihoffen, “Mental Disorder as a Criminal Defense”, pp. 129, 130.
In the face of such recognition by the Supreme Court of a test of criminal responsibility, we do not feel at liberty to consider and decide whether in our opinion the recent modification of such test in the District of Columbia 3 is sound or unsound, nor whether some other test should be adopted. This Circuit follows the law as stated by the Supreme Court and leaves any need for modification thereof to that Court, while the District of Columbia Circuit is entrusted with a considerable degree of autonomy with respect to law enforcement in the District.4 We, therefore, leave unchanged the test of criminal responsibility as thus established.
*276This Court is not in position to hold that the district court erred in treating insanity as a jury issue. Only slight evidence of insanity of a defendant at the time of commission of the act is required to raise the issue for submission to the jury.5
We think, however, that the district court imposed upon the defendant too heavy a burden when it charged that the presumption of sanity continues “until the contrary is shown by proof,” and again, “until he is proven to be insane.” The rule is that, “If the whole evidence, including that supplied by the presumption of sanity, does not exclude beyond reasonable doubt the hypothesis of insanity, of which some proof is adduced, the accused is entitled to an acquittal of the specific offense charged”, Davis v. United States, supra, 160 U.S. at page 488, 16 S.Ct. at page 358; see also, Lee v. United States, supra, 91 F.2d at pages 330-331; Weihoffen, “Mental Disorder as a Criminal Defense”, pp. 226, 241.
The district court further erred in its charge in requiring the defendant to adduce proof both that he did not know the difference between right and wrong and that he was unable to refrain from doing wrong. Either condition existing at the time of the commission of the act and as the result of some mental defect or disease was sufficient to make the defendant not guilty. Cf. People v. Kelly, 302 N.Y. 512, 99 N.E.2d 552, 553, 554; Weihoffen, “Mental Disorder as a Criminal Defense”, pp. 74, 75, 76.6
Upon rehearing, therefore, affirmance is vacated, the judgment of conviction is reversed, and the cause remanded for another trial.
Reversed and remanded.
. “In the later ease of Davis v. United States, 165 U.S. [373] 375, 17 S.Ct. 360, 362, 41 L.Ed. 750, where the defendant was convicted of murder and his chief defense was insanity, the Supreme Court reviewed the charge of the lower court to the extent of considering specifically that portion where the trial court defined insanity as follows: ‘The term “insanity,” as used in this defense, means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it, and able to distinguish between right and wrong, and know that the act is wrong, yet his will — by which I mean the governing power of his mind— has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.’
“The Court, commenting upon this portion of the charge of the trial court, said: ‘Although the court, in addition to this specific language, enlarged upon the Question, in its charge in reference to the matter of insanity covering several pages of the record, and containing quotations from many adjudged cases, we find nothing which qualifies or restricts the definition as above quoted.’ Thus the court clearly indicated that, had the portion of the charge above quoted been limited or restricted in other portions of the charge, it would have been regarded as error.” Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 550, 70 A.L.R. 654.
. “It is the contention of the defense that the mental and emotional qualities of petitioner were of such a level at the time of the crime that he was incapable of deliberation and premeditation although he was then sane in the usual legal sense. He knew right from wrong. See M’Naghten Rules, 10 C. & F. 200, 210. His will was capable of controlling his impulses. Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654.” Fisher v. United States, 328 U.S. 463, 466, 66 S.Ct. 1318, 1320, 90 L.Ed. 1382.
. Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430.
. “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed.” Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1325, 90 L.Ed. 1382.
. Davis v. United States, 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750, 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499; Lee v. United States, 5 Cir., 91 F.2d 326, 330-331.
. The charge on insanity in this case, copied as appendix “A” to the dissenting opinion on original hearing, 229 F.2d 608, et seq., was modeled after the charge in United States v. Chisholm, C.C.S.D. Ala., 153 F. 808, which in turn had borrowed from the charge copied in Hotema v. United States, 186 U.S. 413, 416, 22 S.Ct. 895, 46 L.Ed. 1225. There was, however, the significant addition in two places in the instant charge of the conjunctive clause, “and he did not then know the difference between right and wrong.” Further, the last paragraph of the charge on insanity in this case, 229 F.2d 610, was borrowed from an expression appearing about the middle of page 815 of 153 F., United States v. Chisholm, supra, but omitted the further requirement of the test there expressed, “and the absence of insane delusions respecting the same.”