(dissenting).
When this case was argued, two other cases — Wright v. United States, 102 U.S.App.D.C. —, 250 F.2d 4; and Lyles v. United States, —U.S.App.D.C. —, —F.2d —, —had already been argued to the full court and were awaiting decision. Since all of the issues presented by the present case were involved in one or the other of those cases, it was my view that the division of the court which heard this case should have awaited the full court’s determination of those issues. My brothers did not share my view. I therefore reserved the right to file my dissent after the full court’s action. The full court has now determined the issues1 and, it seems to me, in a manner contrary to my brothers’ conclusions in this case.
I think that under those determinations (1) appellant is entitled to a directed verdict of acquittal by reason of insanity; and (2) even if the case were properly one for submission to the jury, the instructions to the jury were defective in two respects: (a) they failed to convey with clarity that sanity was an element of the crime required to be proven by the Government beyond a reasonable doubt; and (b) they inaccurately informed the jury of the statutory consequences of a verdict of acquittal by reason of insanity.
I.
When the accused has introduced some evidence of his insanity and “the Government has not sustained its burden of proof, i.e., when it appears that reasonable jurymen could not conclude beyond a reasonable doubt that the act was not the product of defendant’s mental illness, ‘there is a duty * * * to direct a verdict of not guilty by reason of insanity.’ ” Wright v. United States, supra note 1; Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 237, 239 F.2d 52, 57; see also Carter v. United States —U.S.App.D.C. —, — F.2d —.
As the majority states, appellant introduced the testimony of his wife and brother-in-law concerning abnormal conduct on his part. The wife, who was the person who turned appellant in to the police when she learned of the robbery, testified that he threw knives at the wall, that he cried, that he bought sleeping pills for the purpose of killing her and himself and that he repeatedly claimed he could hear her having sexual relations with a non-existent man named “Jimmy.” She testified further that, on one occasion, after demanding that the police be called to arrest him, he summoned them himself and, when they arrived, asked to be jailed. He said: “I ain’t done nothing. I just want to get away. I want to go to jail.” The police refused to arrest him, suggesting instead that *927he go to a hospital for observation. The brother-in-law’s testimony confirmed this last incident.
Then the defense called Dr. de Filippis, of District of Columbia General Hospital, one of the two doctors who had examined appellant in May and June of 1955, by order of the District Court, for the purpose of reporting whether he was competent to stand trial. Dr. de Filippis testified that he had diagnosed appellant to be suffering from an advanced condition of dementia praecox, paranoid type, and that the condition had existed for two to three years, a period which included the date of the robbery. He described the delusions and hallucinations which he found appellant to be suffering. The doctor stated further that he was competent to detect malingerers and that, in his opinion, appellant was not malingering. As to whether the robbery was the product of appellant’s mental illness, the doctor said that, in his opinion, it was, although he could not say so “with any degree of certainty.” He explained, “On account of the severity of his symptoms, it is my opinion that when he committed the act, he had lost all sense of reality and judgment, which did not allow him to consider the consequences of his act.”
That the showing of insanity thus made by the accused was sufficient to place upon the Government the burden of proving beyond a reasonable doubt that the robbery was not the product of mental illness2 is beyond question. What remains in question is whether the Government has borne its burden.
The Government’s entire case consisted of the testimony of the victim describing the robbery and the testimony of two policemen. The description of the robbery could support an inference that appellant had a capacity to plan a crime and methodically execute it. The testimony of the policemen was that they were able to understand appellant, that he seemed to have no trouble understanding them, and that they observed nothing to indicate that he was suffering from any mental illness. One policeman had been with appellant only ten to fifteen minutes; the other about two hours. Neither policeman claimed to have any training, experience or aptitude in detection of mental illnesses.
It is upon the foregoing evidence that the majority states the jury “might readily conclude * * * that the accused was not insane at the time of' the crime.” I cannot agree that any reasonable man could reach that conclusion beyond a reasonable doubt.
In the first place, the showing of insanity by which appellant invoked the Government’s burden of proving sanity was a very strong one. The principal witness, Dr. de Filippis, is an expert whose qualifications were not impugned by the Government. He is a member of the staff of a Government hospital and he examined the appellant by court order. It neither is nor can be suggested that he had any bias in favor of the defense. The only challenge to his testimony at the trial was that he based his diagnosis upon what the accused told him without attempting to corroborate the information. But, as the doctor explained in his testimony, he was not concerned with the abstract truth of incidents related to him by the subject. The only fact the truth of which was material was the existence of the subject’s delusions. The truth of that fact the witness was eoncededly qualified to measure and did measure. Moreover, the principal delusion which the doctor found appellant to have, that he could hear his wife, through the walls of his cell, engaging in sexual relations with another man, was corroborated by the testimony of the wife. She had stated that his repeated charges of such non*928existent acts were what caused her to inform against him to the police. No suggestion is made that a wife who turns her husband in to the police in order to get rid of him is biased in his favor.
The majority devalues the doctor’s testimony on the additional ground that it lacked certainty in respect of the element of causation. But, as we pointed out in Wright v. United States, supra,3 citing our decision in Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, 364-365, “the opinion to which a psychiatrist testifies, need only be ‘the type of clinical opinion he is accustomed to form and to rely upon in the practice of his profession.’ It need not consist of ‘mathematically demonstrable certainties.’ ”
There was thus nothing in the evidence presented by appellant which could support a conclusion beyond a reasonable doubt that he had been sane at the time of the robbery.4 What was added by the Government’s evidence? Two things are pointed to: the victim’s description of the crime as showing appellant’s capacity to plan and the policemen’s opinions that appellant was not suffering from any mental illness.
Capacity to plan does not prove that the planner is not suffering from an advanced condition of dementia praecox. A criminal act “may be coolly and carefully prepared; yet * * * still the act of a madman.” Royal Commission on Capital Punishment 1949-1953. Report (Cmd. 8923) 110 (1953). That a sufferer from dementia praecox can plan and commit a crime without realization of wrong is a concept with which we are familiar.5 In the absence of psychiatric evidence that capacity to plan is inconsistent with the claimed illness, the jury can reach that conclusion only by speculation. Here there was no evidence from which the jury could infer that capacity to plan showed mental health. Such psychiatric evidence as there was indicated the contrary. It was Dr. de Filippis’ opinion that appellant’s illness was not of the type to prevent him from knowing where he was or what he was doing, but it “did not allow him to consider the consequences of his act.”
As regards the last of the Government’s evidence, the testimony of the two policemen, I think what the court said in Carter 6 and quoted with approval in Wright7 is dispositive:
“* * * Of course the testimony of a lay witness with training in this or related fields may have more value than the testimony of a witness with no such training. Also obvious upon a moment’s reflection is the fact that, while a lay witness’s observation of abnormal acts by an accused may be of great value as evidence, a statement that the witness never observed an abnormal act on the part of the accused is of value if, but only if, the witness had prolonged and intimate contact with the accused.”
As we said in Wright, “in the face of a substantial showing of insanity,” the Government does not sustain its burden of proving sanity “simply by having two policemen testify, ‘He looked all right to me.’ ”8
To say that the Government does not sustain its burden merely by introduc*929ing such evidence as it introduced here is not to say that the burden is one that cannot be borne. From the District Court record we know that appellant was a mental patient at Gallinger Municipal Hospital for a month in 1948 and at St. Elizabeths Hospital for about eight months just before his trial. It also appears that he was examined by another doctor at about the same time that Dr. de Filippis examined him. Neither side introduced any of the evidence which was obviously available from all of those sources. We cannot tell whether such evidence would have tended to sustain the Government’s burden of proving appellant’s sanity. It may be that it would have fortified his showing of insanity. Whatever it would have shown, it can hardly be doubted that the interests of justice would be better served by airing such evidence than by ignoring its existence.
II.
Even if the majority were right in concluding that there was evidence from which the jury could have found beyond a reasonable doubt that the robbery was not the product of a mental disease or defect, the judgment of conviction should nevertheless be reversed, because the trial judge failed to give the jury proper instructions.
The accused’s sanity, properly placed in issue, is an element of the offense which, like every other element, must be proved by the Government beyond a reasonable doubt.9 Since there is no question that appellant’s sanity was placed in issue, it follows that the jury should have been instructed to acquit by reason of insanity unless the Government had proved beyond a reasonable doubt the necessary element that the robbery was not the product of a mental disease or defect.
It is not enough, in my view, that there was language in the instructions from which the jury might have drawn the correct rule. The charge as a whole must be so constructed as to convey that rule to the jury clearly, unequivocally and beyond likelihood of easy confusion. The present charge, by this test, was erroneous. The charge, read as a whole, did not instruct the jury that it should acquit by reason of insanity if it was not convinced beyond a reasonable doubt that the robbery was not the product of mental illness. The jury could have understood the charge to say that the burden and standard of proof of sanity are different from those applying to other elements of the alleged offense.
Dealing with the other elements of the offense, the judge instructed the jury:
“In order for you to find this defendant guilty of robbery, you must find that the Government has proved beyond a reasonable doubt the following essential elements:10
“1) That this defendant took something of value from the complainant ;
“2) That he took it unlawfully and with the intent to convert it to his own purpose;
“3) That he took it from the complainant’s person or immediate actual possession; and
“4) That he took it by force or violence, against resistance, or by sudden or stealthy seizure or snatching, or by putting the complainant in fear.
* -X- X x * x
“If you find that the Government has proved each of the essential enumerated elements in the manner which I have specified, then you may find this defendant guilty. If, however, you find the Government has failed to sustain in the manner which I have recited to you, namely, by evidence beyond a reasonable doubt, any element or several elements, then you must find the defendant not guilty.”
On the element of sanity, he charged:
“In considering the issue of the defendant’s sanity at the time of the *930offense, it is not necessary for you to determine the type of mental disease or defect, if any you should find, from which the defendant was suffering. 'All that is necessary as to this element is for you to determine that the defendant was suffering from a mental disease or mental defect. * * * your task would not be completed upon a finding, if you so find, that the accused suffered a mental disease or defect at the time of the robbery. He would still be criminally responsible for his unlawful act, unless you should find further that there was a causal connection between his mental abnormality and the act with which he is charged. But if you should find both, that the defendant at the time of the robbery was suffering from some mental abnormality and that this abnormality caused his act, then you would find the defendant not guilty by reason of insanity.”
The obvious difference in treatment between the element of sanity and the other elements of the crime created a danger that the jury might believe here, as in Wright11 and Carter, 12 that, to acquit 'by reason of insanity, it would be necessary for them to reach the affirmative conclusion that appellant was mentally ill at the time of the crime and that the act was the product of the illness. And just as in Carter,13 the judge’s continued emphasis of this theme could easily have impressed it on the minds of the jurors beyond repair by a subsequent statement in the charge that the Government must prove sanity beyond a reasonable doubt.
The second error in the instructions to the jury involves the so-called Taylor v. United States14 rule, recently discussed in Lyles v. United States,15 Catlin v. United States,16 and Tatum v. United States.17 Unlike Tatum where the trial court refused to give the Taylor instruction, in this case the judge undertook to give it. But the terms in which he gave it, in my opinion, defeated its purpose.
We said in Lyles:
“We think that when the instruction is given the jury should simply be informed that a verdict of not guilty by reason of insanity means that the accused will be confined in a hospital for the mentally ill until the superintendent has certified, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or to others, in which event and at which time the court shall order his release either unconditionally or under such conditions as the court may see fit.” — U.S.App.D.C. at page —,— F.2d at page —.
In the instant case, the court instructed the jury that, if Bradley were acquitted by reason of insanity, “the Court will make an order for the defendant’s confinement in a mental hospital, where he will remain until it is judicially determined that he is of sound mind, at which time he will be released.” He did not instruct the jury that release would depend not merely upon a finding of recovery of sanity, but also upon a finding that Bradley would not be dangerous to himself or others. The judge compounded his error by first eliciting from Dr. de Filippis testimony that Bradley was “of sound mind” at the time of' the trial. Thus, the judge did not give the jury the understanding of a verdict of not guilty by reason of insanity which Lyles holds it should be given. What he told the jury amounted to this: “The defendant is now of sound mind; *931and if you acquit him by reason of insanity and he is determined to be of sound mind, he will be released.” The effect of the instruction was to invite the jury to decide the insanity issue, not on the evidence, but rather on the basis of an erroneous conception of the consequences of acquittal.18
The omission of the “danger” part of the instruction is error not only under what we said in Lyles. It is error because it disregards the language, of the Act of August 9, 1955, D.C.Code § 24-301 (Supp. V, 1951), adopted after our Taylor decision. It also disregards our formulation of the instruction in Taylor: that the individual would remain committed “as long as ‘the public safety and * * * [his] welfare’ require.”19 Finally, it disregards the rule of law established at least since Barry v. White, 1933, 62 App.D.C. 69, 71, 64 F.2d 707, 709, and recognized in Durham v. United States, 1954, 94 U.S.App.D.C. 228, 242, 214 F.2d 862, 876, note 57, that a person committed after acquittal by reason of insanity can obtain his release only upon a determination that releasing him would be “without menace to the public peace or safety.”
Lyles makes the proper instruction mandatory hereafter, unless it affirmatively appears that the defendant does not want it. In the instant case, which was tried after our Taylor opinion but before our Lyles opinion, it does not appear that appellant did not want the proper instruction. But we need not decide whether, in these circumstances, the instruction was mandatory in the sense that failure to give it would be plain error. It is enough to say here that to undertake to give an instruction which is designed to promote justice and to give it in such distorted form as to subvert rather than promote justice is plain error affecting substantial rights.
. Wright v. United States, 102 U.S.App.D.C. —, 250 F.2d 4; Lyles v. United States, — U.S.App.D.C. —, — F.2d —.
. Davis v. United States, 1895, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499; Wright v. United States, supra note 1; Douglas v. United States, 1950, 99 U.S. App.D.C. 232, 239 F.2d 52; Durham v. United States, 3954, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430; Tatum v. United States, 1953 , 88 U.S.App.D.C. 386, 190 F.2d 612.
. 102 U.S.App.D.C. at page —, 250 F.2d at page 8.
. The majority refers to the wife’s testimony that appellant had been steadily employed as a roofer and an electrical worker. An inference from such a fact that appellant was not mentally ill would disregard the medical fact, testified to by Dr. de Filippis, that the ability to hold a job and even “have a very good work record” is not inconsistent with a psychotic condition.
. See Blunt v. United States, 1957, 100 U.S.App.D.C. 266, 244 F.2d 355, 362 note 21.
. —U.S.App.D.C. at page —,—F.2d at page —.
. 102 U.S.App.D.C. at page —, 250 F.2d at page 10.
. Ibid.
. Supra note 2.
. Emphasis supplied throughout.
. 102 U.S.App.D.C. at page —, 250 F.2d at page 12.
. U.S.App.D.C. at page —, —— F.2d at page —.
. Ibid.
. 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404.
. Supra noto 1.
. — U.S.App.D.C. —, — F.2d —.
. 101 U.S.App.D.C. 373, 249 F.2d 129.
. See my dissenting opinions in Lyles v. United States, — U.S.App.D.C. at page —, — F.2d at page —; and Tatum v. United States, 101 U.S.App.D.C. at page 377, 249 F.2d at page 133. See also Durham v. United States, 1950, 99 U.S.App.D.C. 132, 237 F.2d 700.
. Supra note 14.