(concurring).
I concur in the opinion of the court.
Without going into other areas of disagreement with my Brother BURGER’S opinion, I feel obligated to refer to his statements that the opinion of this court in Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239 F.2d 52, leaves a case “in the hands of the jury only if there is disagreement among the psychiatrists or if the expert testimony supports guilt,” that Douglas “denies jurors their historic right to pass on the credibility of the experts,” and in note 20 that Douglas treats medical testimony as conclusive if it is not disputed by other medical testimony.
Aside from the fact that the credibility of the experts was not involved in Douglas at all, it is I think a mistake to say that Douglas holds that a case is to go to the jury only in event of disagreement among the psychiatrists or only if the expert testimony supports guilt, or to say that it treats medical testimony as conclusive if not disputed by other medical testimony. The fact is that the Douglas opinion, in concluding the evidence as a whole did not warrant submission of the case to the jury, considered the non-expert testimony along with the expert. Moreover, one of the reasons assigned in the opinion for remanding the case for a new trial, rather than directing an acquittal by reason of insanity, was to afford the government an opportunity to overcome “the dearth of the prosecution’s non-medical testimony, dating on the present records only from the time of the robberies.” 99 U.S.App.D.C. at page 240, 239 F.2d at page 60.
Still confining myself to Douglas, since I do not wish to use the present case for an extended discussion of the problem of criminal responsibility, the following analysis in the Douglas opinion of the post-Durham legal situation may be found by some to be reassuring:
“As to the criteria, or tests, to be used in resolving this issue [of criminal responsibility] Durham gives greater latitude than theretofore had prevailed in this jurisdiction. We had said in Holloway, following the M’Naghten rule, 8 Eng.Rep. 718, that ‘The ordinary test of criminal responsibility is whether defendant could tell right from wrong’, but we had there added, ‘A slightly broader test is whether his reason had ceased to have dominion of his mind to such an extent that his will was controlled, not by rational thought, but by mental disease.’ 80 U.S.App.D.C. at page 4, 148 F.2d at page 666. In the earlier case of Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654, we had also added the ‘irresistible impulse’ test which permitted the jury to consider whether the accused suffered from such a ‘diseased mental condition as to deprive him of the will power to resist the insane impulse * * *.’ Id., 59 App.D.C. at page 145, 36 F.2d at page 549. But in Durham we concluded that the advance of psychiatric knowledge demonstrated the fallacy of making these particular ‘ “symptoms, phases or manifestations” ’9 the exclusive criteria to guide the jury. In so holding, however, we did not purport to bar all use of the older tests: testimony given in their terms may still be received if the expert witness feels able to give it, and where a proper evidential foundation is laid a trial court should permit the jury to consider such criteria in resolving the ultimate issue ‘whether the accused acted because of a mental disorder’. In aid of such a determination the court may permit the jury to con*873sider10 whether or not the accused understood the nature of what he was doing and whether or not his actions were due to a failure, because of mental disease or defect, properly to control his conduct.
“9 [Footnote 9 omitted.]
"10 The charge to the jury outlined by this court in Durham, supra, 94 U.S.App.D.C. at page 241, 214 F.2d at page 875, was not intended to be a model for all cases. We explicitly stated: ‘We do not, and indeed could not, formulate an instruction which would be either appropriate or binding in all cases.’ It is essential to a charge under the Durham decision that there be a proper statement of the ultimate issue in an insanity defense. But the evidence submitted in each case may differ and consequently the particular tests available to aid in deciding the ultimate issue would not always be the same.”