with whom BASTIAN, Circuit Judge, joins (dissenting).
For the second time, by an order entered without an explanatory opinion, this court has saved Comer Blocker from paying the penalty for his crime which two juries have found was not the product of a diseased or defective mind but was murder in the first degree. In the foregoing opinion, issued after the order, the majority base reversal on an alleged error in the charge to the jury as to the burden of proof on the insanity issue. As in the opinion on the first appeal, the majority are content merely to say there was a conviction of first degree murder. Not a word is said as to the crime itself. Such a laconic statement is hardly adequate as a picture of the factual situation which was presented to the jury. This device, whether or not so intended, tends to focus pity on the appellant and to divert attention from the fact that he committed a brutal murder. I think the reader is entitled to a summary of the evidence upon which the jury reached its drastic verdict, so he may know what Blocker did to the decedent as well as what the trial judge did to him. For that reason, I set forth what now becomes a twice-told tale.
On April 5, 1957, Comer Blocker was and had been for some time separated from his common law wife, Frances Hall, by whom he had five children. He was living in Philadelphia and she was residing with several of her children in a small apartment in the District of Columbia. Evidence for the Government showed that in Philadelphia Blocker had bought a shotgun and a carrying case for it; and that on April 5, he brought the gun with him to the District of Columbia and hid it in a wooded area. About 11:00 o’clock that night, having repossessed the gun, he knocked on the door of his wife’s apartment. The knock was answered by his son Chester, then 14 years old, who attempted to prevent his father from entering when he saw him with a gun. Blocker threatened the boy and backed him into the bedroom where his mother was. As Frances attempted to close and lock the door, a shotgun blast came through it and struck her body.1 Blocker then entered the room and shot his wife a second time, inflicting wounds on her face and chest.2 Almost immediately afterward, when he was apprehended, Blocker told an officer that he had come from Philadelphia to kill his girl friend and that he had done so. It does not appear that he was intoxicated that night.
On October 22, 1957, a jury in the United States District Court found Comer Blocker guilty of murder in the first degree and sentence was pronounced in accordance with the statute. Then followed the first appeal to this court, which was orally argued April 6, 1959. Immediately following that argument, without *874stopping to write an opinion and over my protest, the court entered an order reversing the conviction and remanding the case for a new trial. It was not until June 25, 1959, that the majority filed an opinion, from which I dissented, showing that the court’s precipitate action of April 6 was based solely on a sudden change in nomenclature employed by two doctors who were strangers to the record, as I shall show. Two of the three psychiatrists who testified said Blocker had a “sociopathic personality disturbance” at the time of the murder.3 The third found nothing wrong with him. But all three doctors agreed that a sociopathic personality disturbance is not a mental disease or defect. By its verdict of guilty, the jury rejected Blocker’s plea of insanity and found he had no mental disease or defect when he committed the murder.
But, a short time after Blocker’s trial, the Superintendent of St. Elizabeths Hospital and another doctor on the staff (neither of whom had testified) decided that thereafter sociopathic personality disturbance should be classified as a mental disease. It had not been so regarded by them at the time of Blocker’s trial, and it did not appear that any one of the three psychiatrists who had testified had changed his opinion as to classification of the “personality disturbance.” Solely because of this change of opinion by doctors who had not been witnesses, Blocker’s conviction was reversed, as will be seen from the following decisional paragraph from the majority opinion, which is so remarkable that I feel justified in reproducing it:4
“On November 18, 1957, less than a month after this verdict was returned, the Assistant Superintendent of St. Elizabeths Hospital testified in another case * that he and the Superintendent of the Hospital were then agreed that people suffering from sociopathic personality disturbance should be 'labelled’ as diseased, as mentally ill, mentally sick, suffering from mental disease. Counsel for Blocker promptly moved for a new trial on the basis of this new medical evidence. The motion was denied. We think it should have been granted. Blocker, his life at stake, was entitled to a verdict based upon the most mature expert opinion available on an issue vital to his defense.”
In dissenting, I pointed out that at the time of Blocker’s trial there were psychiatrists available who would have testified that sociopathic personality disturbance is a mental disease, but none was called by him; that the changed opinion of two St. Elizabeths doctors was not newly discovered evidence, and certainly was not “new medical evidence;” that therefore the motion for a new trial, not being based on newly discovered evidence, was clearly out of time and was properly denied for that reason if for no other; that in addition the trial court correctly denied the motion on the merits.
So, Blocker was tried a second time. Interestingly enough, at the second trial no question arose as to sociopathic personality disturbance, the. issue which had caused the majority so much concern on the first appeal. A psychiatrist who had examined Blocker for the first time in the spring of 1960, testified with remarkable hindsight, that he was psychotic on April 5, 1957, the night of the murder. Another psychiatrist, who had testified at the first trial and who had examined Blocker not long after the murder, said he had no mental disease or defect when he committed the crime. Once more the jury rejected the plea of insanity, found that Blocker had no mental disease or defect when he did the killing, and found him guilty of murder in the first degree. And again, as I have said, a majority of *875this court, acting rather precipitately and without opinion, entered an order of reversal on December 12, 1960, and in a later opinion assigned one single reason for that action which I think is not well grounded.
At his second trial, which was conducted from March 28, 1960, through April 2, Blocker’s testimony, which was in considerable detail, substantially supported the Government’s evidence on both trials, which I summarized earlier in this dissent. He contradicted it in one particular: he said he fired only once, and that accidentally.5 This was his sole defense. Court-appointed counsel advanced the theory of insanity and introduced “some” evidence of its existence, albeit over Blocker’s protest. He did not think he was insane when he did the murder, and it may well be doubted whether his counsel really thought he was then suffering from a mental disease; for the record shows they attempted to persuade him to plead guilty to second degree murder, which he refused to do. Had counsel actually been of the opinion that a diseased mind produced the crime, they probably would have been unwilling to recommend a plea of guilty to a lesser offense, because in a'subsequent § 2255 a proceeding Blocker probably could obtain a new trial on the ground that failure to plead insanity was ineffective assistance of counsel.
Before discussing the alleged error in the charge, which is the sole reason for reversal, I think it well to point out by way of reminder what the law is in the District of Columbia on the subject of first degree murder. Section 2401, Title 22, D.C.Code (1951), provides, “Whoever, being of sound memory and discretion, kills another purposely * * * of deliberate and premeditated malice * * is guilty of murder in the first degree.” And § 2404 of Title 22 provides that “The punishment of murder, in the first degree shall be death by electrocution.” The foregoing excerpts from the D.C. Code are Congressional enactments, — in the truest sense the .“law of the land,” whether we like them or not. The facts in this case are so shocking and so conclusive that two juries have found these drastic provisions applicable.
With this in mind, I turn to the alleged error in the charge of the trial judge. As we said in Kinard v. United States, 1938, 69 App.D.C. 322, 323, 101 F.2d 246, 247, “It is axiomatic that the charge to the jury must be considered as a whole.” This has been said many times by us and other courts, and is so thoroughly established that citation of supporting authority is unnecessary. It is a salutary principle, for hypercritical scrutiny of every statement in a charge, when considered alone, would practically always reveal dual meanings.6 Each portion of a charge should be given a common'sense interpretation in relationship with all other portions and the issues raised'. The Eighth Circuit said as much in Stoneking v. United States, 1956, 232 F.2d 385, where the following appears at page 389:
“In considering the effect of a challenged portion of a court’s instruction to the jury, this court must view the charge in its entirety to determine whether or not the jury could have been misled by the portions to which objection has been made. Myers v. United States, 8 Cir., 1927, 18 F.2d 529, 530. So here, if we view only the particular portions of the charge objected to, fault might be found; but when viewed in the light of the court’s remarks which immediately followed the objected-to portions, .we find no reason for criticism, and must conclude that the jury was not confused by the instruction and that taken as. a whole it was not improper.”
In Boyd v. United States, 1926, 271 U.S. 104, at page 107, 46 S.Ct. 442, at page 443, 70 L.Ed. 857, after reciting a por*876tíon of the charge which was undoubtedly correct, the Supreme Court said:
“Further on in the charge the court indicated that it was not admissible for the defendant to issue prescriptions to a known addict ‘for amounts of morphine for a great number of doses, more than was .sufficient for the necessity of any one particular administration of it.’ Complaint is now made of this. It appears ambiguous, and, if not taken with the rest of the charge might be regarded as meaning that it never is admissible for a physician, in treating an addict, to give him a prescription for a greater quantity than is reasonably appropriate for a single dose or administration. So understood, the statement would be plainly in conflict with what this court said in the Linder Case [Linder v. United States, 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819]. But we think it could not well have been so understood in this instance. It did, not stand alone, but was to be taken in connection with what preceded it, and also with what followed. * * ” (My emphasis.)
The thoroughly established principle that the charge must be considered as a whole, and that a criticized passage must be considered in connection with the language which precedes and follows it, has been totally disregarded by the majority in this case. They seize upon one single portion of the court’s instructions which includes the expression, “if you find” the defendant committed the crime while he was suffering from a mental disease or defect which caused him to commit it, you may find the defendant not guilty by reason of insanity; this, they say, “informed the jury that the burden of convincing them — which is the burden of proof — was on the defendant.” It will be noted that in the passage from the charge which the majority criticize, not a word is said about the burden of proof. The most the court said was, in effect, this: “if you find causative insanity, you may reach a verdict of not guilty on that ground.”
Exactly the same thought was expressed in the trial judge’s charge in the Askins case.7 The opinion does not indicate that it was preceded and followed by carefully correct instructions as to the burden of proof on the insanity issue, as is the case here. Judge Danaher, writing for himself and Judge Prettyman, said, “We cannot doubt where the instructions were so clear, that the jury rejected the defense of insanity.” Again he said, “There can be no doubt that the instructions were correct and adequate for the guidance of the jury.” Judge Fahy’s dissent in that case does not suggest that the charge was erroneous as to the burden of proof on insanity. Yet, the majority say in the case at bar that similar language in the charge “informed the jury that the burden * * * of proof was on the defendant.” It had not seemed so in the Askins case.
I have pointed out that the one challenged portion of the charge does not purport to deal with or even mention the burden of proof. The majority’s conclusion that it placed the burden of proof on Blocker is what Justices Black, Reed and Burton once called a legalistic inference established by purely formal analysis.8
Drawing such a legalistic inference from one passage which does not mention burden of proof is particularly improper here because the preceding portion of the charge carefully instructed the jury that the Government has the burden of proof on the insanity issue, and because in the succeeding portion of the charge the judge said:
“Now, ladies and gentlemen, it should be crystal clear to you that where some evidence is introduced to you the presumption of sanity disap*877pears and the responsibility from that point on is on the Government. It is not a responsibility which is on the defendant to prove any mental illness or that the mental illness was the causal effect or the motivating force behind the act in question. Those are responsibilities for the Government.” (My emphasis.)
This was the last statement in the charge as to the burden of proof on the insanity defense; it was put squarely and correctly upon the Government. It was more favorable to the appellant than he deserved, for the introduction of some evidence of insanity does not cause the presumption of sanity to disappear. The presumption remains and is to be considered by the jury in connection with the evidence on the subject. Davis v. United States, 1895, 160 U.S. 469, 488, 16 S.Ct. 353, 40 L.Ed. 499; Douglas v. United States, 1956, 99 U.S.App.D.C. 232, 239 F.2d 52.
The question is not merely whether the criticized portion of the charge was erroneous, but whether the charge in its entirety left the jury in doubt as to whether the burden of proof was upon the Government or the defendant. Only in that event could the charge be said to have been prejudicial. I think the charge, considered as a whole as it must be, made it “crystal clear,” as the trial judge said, that the burden of proof was on the Government. It is impossible for me to believe that any juror of ordinary intelligence could have been confused as to where the burden of proof lay.
Even though a jury’s verdict causes the imposition of the death penalty, it should not be set aside unless prejudicial error appears. Perceiving none here, I would affirm.
In the main, I agree with Judge BURGER’S concurring opinion, except I do not think the views he has expressed require or justify concurrence in a reversal of the judgment of conviction. I think his criticism of this court’s 1954 rule on criminal responsibility is sound, and I concur. The decision in Durham v. United States, in which I took no part,9 has always seemed wrong to me, for two reasons. First, it is contrary to the Supreme Court’s holdings in the second Davis case; second, it is logically unsound.
As to the first reason: the Supreme Court in Davis v. United States, 1897, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750, at least impliedly recognized the tests of criminal responsibility as being whether the accused was incapable, because of some mental disorder, of distinguishing between right and wrong with respect to the act, or whether he was unable, because of such disorder, to refrain from doing wrong. In Fisher v. United States, 1946, 328 U.S. 463, 466, 66 S.Ct. 1318, 90 L.Ed. 1382, these tests were referred to with apparent approval. Nothing in any Supreme Court opinion since the second Davis case casts any doubt upon my interpretation of it. The Fifth and Ninth Circuits have considered themselves bound to follow the .tests of criminal responsibility contained in the Davis opinion.10 I do not agree that we are at liberty to promulgate a rule of criminal responsibility different from that approved by the Supreme Court. Doing so would be, I think, “egregious error,” which the opinion in the Fisher case says will be corrected, despite our autonomy in local matters.
As to the second reason: I cannot agree that one who knows right from wrong, but freely, knowingly and deliberately chooses to do the wrong can be heard to say some sort of mental disease or defect caused his criminal conduct. To be an excuse from criminal responsibility the disease must have been such as to destroy the ability to understand what is *878right and what is wrong, or to take away the actor’s mental power to control his own actions. Yet the Durham opinion calls the right-wrong test a “discredited criterion.”
Of course, the problem of proof concerning a defendant’s mental power to distinguish between right and wrong or to control his conduct does indeed present difficulties; but in my view the criterion itself cannot properly be said to be discredited.
It is interesting, and I think significant, to note that in the period of more than six years since its announcement the Durham rule has not been accepted by any other jurisdiction, as far as I know. The rule obtains only here and in New Hampshire where it originated in 1870. The Durham ease has been presented to and urged upon many courts. It has been considered and rejected by three federal courts of appeals, by the United States Court of Military Appeals, and by the highest courts of twenty states, as Judge BURGER points out.
. An autopsy revealed the presence of wood splinters in one of her wounds together with the pellets from the shotgun shell.
. These wounds did not contain splinters of wood.
. This sounds formidable, but really is not. A sociopath is, to state it simply, a person -who cannot get along with other people.
. Blocker v. United States, 1959, 107 U.S.App.D.C. 63, 64, 274 F.2d 572, 573.
“See testimony in United States v. Leach, Crim. No. 450-57, D.D.C., and in Rosenfield v. Overholser, D.C., 157 F.Supp. 18.”
. The evidence that he fired two shots was overwhelming.
. 28 U.S.C.A. § 2255.
. Cf. dissent of Mr. Justice Black in Bihn v. United States, 1946, 328 U.S. 633, 639, 66 S.Ct. 1172, 90 L.Ed. 1485.
. Askins v. United States, 97 U.S.App.D.C. 407, 231 F.2d 741, 743, certiorari denied 1956, 351 U.S. 989, 76 S.Ct. 1054, 100 L.Ed. 1502.
. Mr. Justice Black dissenting in Bihn v. United States, 1946, 328 U.S. at page 640, 66 S.Ct. at page 1175, 90 L.Ed. 1485.
. The Durham case was decided by a division composed of Judges Edgerton, Bazelon and Washington.
. Howard v. United States, 5 Cir., 1956, 232 F.2d 274; Sauer v. United States, 9 Cir., 241 F.2d 640, certiorari denied 1957, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539.