(dissenting in part).
The judgment and sentence are reversed because there is an absence of evidence that the appellant, knowing the difference between right and wrong; was able to refrain from doing wrong. I do not disagree. The majority 'stresses Howard v. United States, 5 Cir., 232 F.2d 274, where an en banc court, by an opinion written by the author of the opinion of the majority here, reversed for a new trial. I would follow the precedent there and reverse for a new trial here. The majority opinion states that no good purpose would be served by ordering a new trial. I would suggest that a good purpose would be served by permitting testimony to be introduced as to the appellant’s ability to refrain from doing wrong so that the issue might be determined. If this issue and the other relevant questions should be resolved adverse to the appellant, a judgment of guilt might result which would be free from error. This Court, in an opinion written by the writer for the majority here, has said;
“ * * * since the Government may possibly have further evidence, the cause is remanded for further proceedings * * Guevara v. United States, 5th Cir. 1957, 242 F.2d 745.
See also White v. United States, 5th Cir. 1954, 216 F.2d 1; Gondron v. United States, 5th Cir. 1957, 242 F.2d 149; Steele v. United States, 5th Cir. 1955, 222 F.2d 628. Unless it can be said that the Government cannot possibly have further evidence, the cause should be remanded for a new trial. I cannot join In so saying.