(dissenting in part).
This is not, in my view, a case -where the accused has been prejudiced by the traditional charge on insanity which has heretofore been used by trial courts and approved by appellate courts in the great majority of federal cases. I am keenly aware that traditional formulations, devised long ago by common law judges in an attempt to describe to juries the mental condition which should relieve an offender of legal responsibility for his violations of the criminal law, can and should be revised and improved in the light of increasing understanding of mental aberration and antisocial conduct. But that problem needs to be faced and I think should be faced by an appellate court only in a case where the traditional formulation has worked, or may have worked, an injustice.
The charge which this court is now requiring on the issue of insanity has much the same significance as a guide for evaluation of the criminal psychopath as does that form of the so-called irresistible impulse test which was part of the charge actually given. The irresistible impulse test, as it appears in the trial court’s charge, defines legal insanity in terms of “mental disease” which has made the actor’s “will, or the governing power of his mind” ineffective as a controlling force. This court’s formulation requires acquittal if a “disease of the mind” has deprived the actor of “substantial capacity to conform his conduct to the requirements of the law he is alleged to have violated”. Both formulations direct attention to the critical issue of the effect of mental disease upon the capacity of the actor to control his behavior and to exercise the self-restraint which the law requires. This court’s formulation is preferable in that it substitutes specific reference to control over the conduct in question for the more generalized conception of loss of will power. See Wechsler, The Criteria of Criminal Responsibility, 1954, 22 Univ. of Chi.L.Rev. 367, 369-372. Moreover, psychiatrists may well reject talk of destroying the will as unscientific imagery. Yet, I think either formulation would suffice in this case to cause the jury to consider whether the evidence of sociopathic personality disclosed mental disease and whether this mental disease had so deprived the actor of capacity to control his conduct as to free him from blame for the auto theft in question.
I am the more reluctant to join in ordering a new trial in this case because of another consideration. It may be reasonably clear that a recidivist is emotionally disturbed and needs psychiatric treatment although the evidence permits fact finders to differ as to whether the wrongdoer’s mental condition and the relation of his conduct to it are such that he should be held legally accountable for his behavior. Cf. Blocker v. United States, 1959, 107 U.S.App.D.C. 63, 274 F.2d 572. On the evidence, as analyzed in the majority opinion, I think this is such a case. If we should affirm the judgment below, as I think we conscientiously can, the result of appellant’s conviction and the consequent invocation of the Youth Correction Act would be his confinement for an appropriate period in a psychiatric institution for such treatment and supervision as are best *777calculated, in the light of our present medical knowledge, to accomplish his rehabilitation and cure. On the record this result would be good for the appellant and good for society. On the other hand, as the majority opinion recognizes, it is doubtful whether the federal authorities could require the restraint and psychiatric treatment of the appellant if he should be retried and, by reason of his mental illness, found not guilty. I think we need not and, therefore, should not thus risk the release of one found to be a criminal psychopath when restraint and treatment seem desirable both medically and socially.
For these reasons I would affirm the conviction and commitment of the appellant. In reaching this conclusion I am not unmindful of the important contribution which the majority opinion makes in providing trial judges with more precise and scientific instruction for juries on the relation of mental disorder to criminal responsibility. Indeed, I agree with the majority that in the future trial judges in this circuit should abandon the traditional charge on insanity and adopt the much more satisfactory formulation set out in the opinion of Chief Judge BIGGS.