(dissenting).
Appellant, the defendant, at material times was a drug addict. However, the case does not involve any violation by him of the narcotic laws. He was indicted and convicted of stealing clothes from a department store, and of simple assault in scuffling with a store employee when accosted. After pleading not guilty he was committed to St. Elizabeths Hospital for examination to determine whether he was competent to stand trial and whether he was suffering from mental disease or defect at the time of the theft, and, if so, whether the conduct charged to him was caused by such disease or defect. Defendant was subsequently certified as competent to stand trial.1 Having waived trial by jury he was tried by a district judge. The sole defense was insanity.
Defendant did not testify and so no conclusion as to his mental condition could be drawn from his demeanor at the trial. Two psychiatrists on the staff of St. Elizabeths who had examined him while he was at the Hospital testified that he was suffering from a mental disease at the time of the offenses, and that the offenses were the product of the disease. They said he knew that what he did was wrong but that this did not affect their opinion. It is now well settled that knowledge of the difference between right and wrong, though relevant to the issue, is not the ultimate test of criminal responsibility in this jurisdiction.
A summary of the evidence of the psychiatrists, who went into details, is now given. Defendant was subject to an overwhelming craving for drugs which seriously impaired control of his actions.2 The mental disease from which the doctors said he suffered was described as a personality disorder of severe proportions. They said his mental condition led him to use drugs, and he stole to obtain narcotics for this addiction; that his addiction was a symptom of the disease and his actions were caused by his almost irresistible need to obtain narcotics. In other words his capacity to control his action was impaired by both the illness and the drug addiction. Other characteristics of the accused which indicated his mental disease were also explained. One of the psychiatrists said defendant had an emotionally unstable personality evidenced by his history, and that his condition also showed features of schizoid personality; that he displayed two personalities while in St. Elizabeths, one of cooperation and the other quite out of proportion, leading to his transfer to a more secluded ward. One of the doctors testified that “until something is done about him, until he can do something about himself, he is *621going to continue to take dope and he is going to continue to steal to get the money to take it.” 3
With no evidence whatever to dispute the testimony that defendant suffered from a diseased mental condition and that this condition was causally related to the conduct for which he was criminally charged, the case was submitted to the judge for decision. The judge expressed concern as to the state of the evidence, whereupon the Government suggested a continuance to seek a private psychiatrist. The case was continued from September 4 to September 14, 1962. On the latter date a doctor called by the Government as an expert testified that during the recess he had seen defendant once and the latter refused to cooperate. The prosecuting attorney asked no further questions, thus abandoning any effort to offset the evidence of the doctors who had previously testified. The court then asked the doctor, “[W]hat is an emotionally unstable personality?” He replied that he supposed it is “an individual who is unable to control outbursts of emotion or, perhaps, one who is not necessarily unable but who has extremes of emotional tension from time to time, loses his temper, weeps or shows other evidence of emotion.”4 Asked by the court if he considered a person suffering from an emotionally unstable personality as suffering from a mental disease, he replied that he did not; but, of course, this is not a statement that such a person is not also suffering from a mental disease. On cross-examination he said he was not aware that other experts had testified that defendant was not mentally sound at the time of the offenses, and that such an awareness would not change his opinion, but, he added, he did not have enough facts to express an opinion as to the defendant’s mental condition at the time of the offenses.
Clearly, as it seems to me, the Government did not seriously seek to prove, much less actually prove beyond a reasonable doubt, as required to sustain the indictment, that defendant was not suffering from a mental disease at the time of the alleged offenses or that his conduct was not the product of such disease. I do not say that because a person is a drug addict he is for that reason suffering from a mental disease which relieves him of criminal responsibility for acts attributable to the addiction. Each ease must be judged on the evidence in that ease. The only evidence worthy of consideration as to this defendant’s condition was that he was in fact suffering from a mental disease which caused the conduct for which he was indicted. For this reason I think there arose as matter of fact and law a reasonable doubt as to his criminal responsibility for the offenses, and the *622court should have found him not guilty by reason of insanity, with the result that he would have been sent to St. Elizabeths Hospital for treatment and there retained until no longer dangerous to himself or the community.
I recognize that the question of criminal responsibility is an ultimate one for the trier of fact, and
whether uncontradicted evidence, including expert opinion evidence, which is sufficient to raise a jury question on the mental issue is also sufficient to require a directed verdict depends upon its weight and credibility. Douglas v. United States, 99 U.S.App.D.C. 232, 239 F.2d 52.
McDonald v. United States, 114 U.S.App. D.C. 120, 312 F.2d 847, 850 (1962); but the expert opinion evidence in this case was entitled to special weight, for it did not stand alone; it was related to a definite and long addiction of defendant to drugs, a condition which itself affects the mind and control of conduct. Moreover, there was not lacking a conclusive diagnostic opinion that the offenses were the product of the mental disease, as there was in Campbell v. United States, 113 U.S.App.D.C. 260, 307 F.2d 597 (1962); nor was there introduced by the Government any reliable psychiatric testimony rebutting the defense of insanity, as there was in Carey v. United States, 111 U.S.App.D.C. 300, 296 F.2d 422 (1961). Furthermore, it is obvious that sufficient doubt was generated by the defense evidence to cause the judge to continue the case to enable the Government to meet this evidence. This it failed to do.5
The majority says there is no factual evidence, as distinguished from a conclusory opinion, that the drug addiction caused defendant to commit the theft and assault, that the record shows nothing about how recently he had taken drugs, how great a craving if any he was suffering, whether he had a supply of drugs, or that a need therefor directly produced this theft and assault. The opinion then states, in support of the trial judge’s conclusion, that the judge wps not bound to assume that such facts as the above existed, or to accept the general and conclusory assumptions of the psychiatrists as representing the actual facts in the case. In the first place, the majority ignores Dr. Hamman’s testimony that defendant had the “compulsive need — the almost irresistible need to obtain narcotics” and to obtain money to get narcotics. In the second place, and more importantly, the court here adopts a standard which places upon the defendant the burden of proving such facts as are said not to have been proved. But the burden was upon the Government to prove beyond a reasonable doubt either that defendant was not suffering from a mental disease or that the forbidden conduct was not the product of a mental disease. The trier of the facts must decide the issue on the basis of all relevant and material evidence introduced, but there is no requirement that the evidence which creates a reasonable doubt include proof of such facts as the majority states were not proved. Ample evidence was introduced on the issue of mental disease and causality.
In order to point up the mistake in the approach of the majority, as it seems to me, let us consider the problem in the context of a case where the defense of insanity is successful. In any such case there is never proof of the “fact,” in the sense in which the majority uses that word, that a mental disease was responsible for the commission of the act. It is always a matter of opinion. And even if the majority’s erroneous standard of proof is applied to the conclusion reached by the judge in this case, which the majority accepts, it cannot be said that the Government proved beyond a reasonable doubt as a “fact,” in the sense the majority uses the word, that the defendant was not suffering from a *623mental disease or, if he was, that the disease was so unrelated to the offenses as not to relieve defendant of responsibility. Rather, the judge reached a factual conclusion, or formed an opinion. So did the doctors; and their opinions, while not binding as such on the judge, when coupled with the other evidence created the reasonable doubt which the judge himself apparently held when he recessed the trial. The expert called by the Government after the recess certainly did not afford a basis for abandonment of the doubt. In any event, the testimony as a whole leads me to the conclusion I have reached.
There is another and independent reason for reversal, though this reason would authorize a new trial rather than require an acquittal on the ground of insanity. In finding defendant guilty the judge said, “I cannot find on the evidence before the Court that this defendant was suffering from a mental disease at the time of the alleged acts, or that there was any mental disease that the crime was the product of * * * ” This is not the correct standard, which is that the trier of the facts must be convinced beyond a reasonable doubt that the accused had no mental disease of which the crime was the product:
The burden is upon the Government to establish beyond a reasonable doubt * * * either (1) that the accused had no mental disease or defect or (2) that, although the accused was defective or diseased, his act was not the product of the affliction. Or, to state the matter otherwise, the jury must acquit unless it is convinced beyond a reasonable doubt that the alleged criminal act was not the product of a mental disease or defect.
Carter v. United States, 102 U.S.App.D.C. 227, 234, 252 F.2d 608, 615 (1957). And see Lynch v. Overholser, 369 U.S. 705, 713, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962).
While it may be that in his own mind the judge followed the correct standard we cannot presume that he did so when the record affirmatively indicates the contrary. In any event the verdict of guilty should not be affirmed so long as the record indicates an incorrect legal standard was applied in resolving the most important issue in the case.
. The letter from St. Elizabeths noted the presence of a mental disease then and at times pertinent in the past, though it said no “valid opinion” as to whether the acts charged were the product of this mental disease could be formed.
. That he was a drug addict at the time of the offenses seems quite clear. One of the doctors was asked whether or not he was familiar with the alleged offense. He responded affirmatively, and was then asked if the offense was caused by the defendant’s mental condition. The doctor responded:
“A. Well, in that the mental condition led to his using addicting drugs and in that he was stealing in order to get ahold of addicting drugs. I would say there was a causal connection.
“Q. Did you ascertain how long he had been using narcotics or dope? A. Well, of course, I have only his own word on this. He stated since the age of 14. I have no reason to disbelieve this. There certainly is indication that he had been addicted for a number of years.
“Q. [And how old is he now?] A. [T]wenty-six.”
Moreover, the report of the District of Columbia General Hospital stated he was suffering' from addiction. The Government did not dispute that defendant was a drug addict.
. The majority makes reference to a report rendered by a doctor at St. Eliza^ beths to the effect that the defendant’s attention, perception and comprehension seemed adequate. The meaning of this report was explained by one of the defense psychiatrists in the following terms: “By that he was stating that there was no abnormal thinking present. In other words, the man was not suffering from a psychotic condition. Content of thought refers to whether or not the person sees the world realistically or whether he has delusional ideas.”
From this explanation it can be seen that the report in question referred to only one of the mental factors which must be considered in determining whether the defendant was suffering from a mental disease and in no way represented a conclusive diagnosis that the defendant was sane. The evidence also shows that this report was considered by the witnesses who testified for the defense in the formation of their opinions as to the defendant’s condition. Moreover the doctor who made the report had not completed his three years of residency training, being in his first year of such training at the time. The Government did not call this doctor as a witness so that he could be subject to examination and cross-examination and we do not know his ultimate opinion regarding defendant.
. This definition, it will be noted, was not applied by the witness to defendant’s condition and does not dispute the express testimony of the defense doctors that defendant’s mental condition substantially impaired his behavioral control.
. We need not decide whether we should reverse had the unanimous verdict of a jury found defendant to be guilty.