(concurring in part and dissenting in part):
I. Sham, Arrest
Appellant says that his arrest for drinking in public was a sham to cover for a narcotics search and hence the twenty-eight capsules of heroin-hydrochloride mixture found on his person should have been suppressed at his trial for Harrison Act violations.
The record lends some support to his contention. He was arrested by a narcotics squad officer in plain clothes, who testified that he was on watch for narcotics activity, in a high narcotics density area; he neither looked for persons drinking in public nor ordinarily arrested persons committing that offense in his presence; from the moment that he saw appellant walking on V Street he suspected narcotics activity, and therefore followed appellant; he recognized appellant as a prior narcotics offender before arresting him for the misdemeanor. Appellant stated, without contradiction, that other men in the alley were drinking, but were not even approached by the officer.
On the other hand, there is support for the view that the arrest was not a sham. Appellant violated a city ordinance in the immediate presence of a police officer, who would have committed a misdemeanor had he failed to arrest. D.C.Code § 4-143. Upon the officer’s inquiry, appellant stated he was carrying a weapon. When the officer halted appellant from reaching for it and looked for himself, he discovered the narcotics. Neither appellant’s illegal behavior nor his reaction when asked about weapons is in any way attributable to the officer.
A defendant is not foreclosed from questioning the motives behind a legal arrest which leads to the discovery of evidence of other crimes. Notwithstanding such statutes as D.C.Code § 4-143, police exercise substantial discretion in arresting persons for commission of minor offenses such as drinking in public1 When a minor misdemeanor statute is enforced only as a gamble for detecting a larger crime, this discretion is abused.2 To discourage such gambles, the evidence thus obtained is excluded.3 Thus in McKnight v. United States, 87 U.S.App.D.C. 151, 183 F.2d 977 (1950), the defendant was legally arrested for lottery violations. However, the police “purposely refrained from arresting him in the street,” as they might have, so as to be able to conduct a search of the premises they expected to enter. The fruits of this search were excluded. In White v United States, 106 U.S.App.D.C. 246, 271 F.2d 829 (1959), defendant was arrested in New York for vagrancy and the police used the occasion, as they conceded to be their practice, to search for narcotics. *972We assumed the legality of the arrest, but excluded the evidence obtained there because the “search * * * in truth was not incidental to an arrest, but * * in fact the arrest was incidental to [the] search.” (Id. 106 U.S.App.D.C. at 248, 271 F.2d at 831.) See also Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961).
Although the present case is close on the sham arrest issue, the record does not justify reversal. Much of the force of the contention that appellant’s arrest was “merely” for drinking in public would have been destroyed had it been clearly established that other men in the alley were drinking. It would appear that defense counsel was aware of this, yet the officer, who admitted that others were there, was never asked — and did not say — if they were drinking. Appellant’s version of the arrest, although it generally coincided with that of the officer, could be disbelieved on this point. The issue was one for inference to be drawn by the fact-finder based upon credibility and demeanor. For that reason alone, I would sustain the ruling below.
II. Equal Protection
The “sham arrest” issue is not the only aspect of police and prosecutorial discretion in this case. Appellant claims that a denial of equal protection results from prosecutorial discretion to proceed under the Federal narcotic laws, rather than the equally applicable provisions of the District of Columbia Code. As I have previously noted,4 this claim has substantial merit. We may not reject it merely on the unelaborated judgment of affirmance in Lloyd v. United States, No. 18049, decided July 3, 1964, 119 U.S.App.D.C. -, 343 F.2d 242.
The problem is perhaps best illustrated by appellant’s first conviction for narcotics offenses in 1956. On arrest, under circumstances not disclosed by the record, he was found to possess one capsule of heroin-hydrochloride mixture5 and nine marijuana cigarets. The arresting officer was a member of the narcotics squad of the Metropolitan Police, with statutory responsibilities to enforce both Federal narcotics statutes and the District of Columbia Code. He charged appellant with violation of the two Federal statutes which have generally been applied against possessors of heroin,6 *plus the Federal statute applying to improper possession of marijuana.7* Appellant was indicted under all three statutes. He subsequently pled guilty to one of the heroin counts.
Appellant could have been charged with violation of D.C.Code § 33-402(a), which renders it “unlawful for any person to * * * possess * * * any narcotic drug, except as authorized * * As a first offender, he could then have been fined from $100 to $1,000, or imprisoned for up to one year, or both.8 Or he might have been prosecuted solely under 26 U.S.C. § 4704(a), a Federal provision which outlaws purchase or sale of narcotics except from original packages with an authorizing tax stamp, and, since 1956, punishes first offenders by imprisonment of two to ten years, with an optional fine of up to $20,000; first offender sentences under this provision can be suspended, and probation granted. Or he might have been prose*973cuted under 21 U.S.C. § 174, which prohibits unlawful dealings in imported drugs, but can be applied to addict-possessors; it punishes first offenders by fine of up to $20,000 and imprisonment for five to twenty years, without possibility of suspension of sentence or probation, 26 U.S.C. § 7237(d).
Thus, although the Federal and District statutes cannot be said to create different grades of crime,9 the choice of the former decided that appellant was to be tried for a felony rather than a misdemeanor, and subjected to a minimum mandatory sentence. By invoking both Federal statutes, the prosecutor foreclosed a suspended or probationary sentence under § 4704(a) and added three years to the mandatory minimum sentence.
Hutcherson’s present appeal is from his third conviction for Federal narcotic offenses.10 Both 26 U.S.C. § 4704(a) and 21 U.S.C. § 174 punish a third offender by fine of up to $20,000 and imprisonment for ten to forty years, without possibility of probation or suspension of sentence.11 Multiple offenders under the D.C.Code, however, are punishable only by fine of $500 to $5,000 and/or imprisonment for any term up to ten years. D.C.Code § 33-423. Suspension of sentence and probation are possible.
In Berra v. United States,12 where the question was prosecutorial choice between two tax statutes, a majority of the Supreme Court explicitly refused to reach the issue whether such discretion was constitutionally permissible. In that case, choice was between one statute treating the offense as a misdemeanor13 and another treating it as a felony,14 but with no mandatory minimum sentence. In a compelling dissent, Mr. Justice Black remarked:
“So far as I know, this Court has never approved the argument the Government makes here. * * * [That] argument rests on the stark premise that Congress has left to the district attorney or the Attorney General the power to say whether the judge and jury must punish identical conduct as a felony or as a misdemeanor.
“A basic principle of our criminal law is that the Government only prosecutes people for crimes under statutes passed by Congress which fairly and clearly define the conduct made criminal and the punishment which can be administered. This basic principle is flouted if either of these statutes can be selected as the controlling law at the whim of the prosecuting attorney or the Attorney General. * * *
“ * * * Of course it is true that under our system Congress may vest the judge and jury with broad power to say how much punishment shall be imposed for a particular offense. But it is quite different to vest such powers in a prosecuting attorney. * * *
“The Government’s contention here also challenged] our concept that all people must be treated alike under the law. * * *” [351 U.S. at 138-140, 76 S.Ct. at 690-691.]
The choice between felony and misdemeanor in Berra did not have as serious consequences as the choice involved in the instant case. On conviction for the felony charge in Berra, the trial judge *974could have imposed the penalties provided by the misdemeanor statute if he was convinced that the prosecutor was mistaken in charging a felony. Here, however, prosecution under Federal rather than District narcotics law precluded any sentence less than ten years. No correction of a prosecutorial “mistake” would be possible. When the prosecutor “chooses” a mandatory minimum sentence, he makes a sentencing decision, without either sentencing information or expertise in sentencing.
This sentencing aspect of the prosecutor’s choice distinguishes the prior cases15 and is the strongest support for the equal protection argument.16 Yet it cannot be said that the District statute must prevail over the Federal. While it is doubtful that Congress carefully considered their reconciliation when the District statute was passed,17 its subsequent actions18 suggest that the District provisions are distinctly subsidiary to the Federal. Moreover, the Federal statute is of national application, and has been enforced here and elsewhere for over fifty years. Compelling the United States Attorney for the District to prosecute under the local act would hardly resolve the matter since, for example, minor offenses committed in Maryland and Virginia could still be prosecuted under Federal authority.
Nor can statutory overlap be avoided by specifying the quantities of narcotics which would justify prosecution under one or another of the statutes. Congress provided no basis for distinguishing between “local” and “national” drug crime. The indications are that it considered all such crime a matter of Federal significance. Quantitative lines are questionable even as between 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, where there is evidence of congressional intent to make “a distinction * * * between the possessors and traffickers.”19 For Congress plainly intended to overcome the inherent difficulties of detection and proof of narcotics violation by invoking presumptions *975arising from possession alone.20 Moreover, quantitative distinctions may encourage peddlers to carry “one grain less” than the operative amount.21
Thus I agree that this prosecutorial discretion is inevitable. But this discretion is not unbridled. Decisions must be made by proper authority upon a rational basis with due regard to statutory meaning and intent.
Recent instructions from the Attorney General relating to prosecutorial decisions in narcotic cases suggest that the United States Attorney does have certain administrative guidelines for his choice. Thus Title 2, § 86.2 — 86.3 of the United States Attorney’s Manual provides:
“The principal object of enforcement is * * * to prosecute the importers, dealers and traffickers * * *. The emphasis should be on prosecutions of the sellers or purveyors, particularly those who deal with minors, and not the mere addict possessors. * * * [C]riminal prosecutions of [addicts] in some instances may be justified so as to compel an addict to undergo complete [rehabilitative] treatment. * * * [P]rosecutions for such minor offenses which are considered to be local in character may well be and often are left to the state or local authorities. Not falling within such minor category are cases against persons, whether addicts or not, who engage in the importation or transportation or are in possession of these drugs under circum-, stances reasonably indicating that the drugs were intended for use in the illegal traffic. * * *
“In prosecutions for serious offenses by traffickers * * * two counts may be charged, one under the internal revenue laws and the other under [21 U.S.C. § 174].” [Emphasis supplied.]
More recently, a letter from the head of the Criminal Division of the Department of Justice commented:
“During the White House Conference [on Narcotic and Drug Abuse] one panelist (a Federal judge) said there was a reluctance on the part of United States Attorneys to use Section 4704 * * * of Title 26 for first offenders. Under [§ 4704] first offenders are eligible for suspension of sentence, probation and parole. * * * [I]n the United States Attorneys’ Bulletin, Volume 10, Number 25, December 14, 1962 * * * the Department advised that its review revealed excessive use of [21 U.S.C. § 174]. Current examination indicates no appreciable decrease * * *
“In any case where a person, not previously convicted of any felony, is charged with violating the federal laws relating to narcotics * * * and * * * § 4704 * * * of Title 26 is applicable to the offense, that Section shall be used exclusively unless clearance to prosecute under other applicable sections is received from the Criminal Division.
*976“ * * * [Authorization should be requested in writing, setting forth in some detail the reasons for such request.” 22
The Bulletin referred to is to the same effect.
These instructions may provide a suitable framework for structuring prosecutorial choice. The reference in the first instructions above to “minor offenses which are considered to be local in character” suggests use of the “local” or District statute in the absence of special circumstances. The instructions for choosing between 26 U.S.C. § 4704(a) and the other Federal provisions are more definite. The Department appears to be invoking its power to “direct all United States attorneys * * * in the discharge of their * * * duties.” 28 U.S.C. § 507(b).
We are not advised, however, of the extent to which these instructions are followed,23 and of the extent to which the narcotics squad of the Metropolitan Police Department influences the choice.24 We do not know how the United States Attorney’s allocation of cases between the Federal and local statutes compares with that found in other jurisdictions, where local and Federal laws are enforced by different authority.24® We do not know whether information outside the record would show that the offense here was of greater importance than appears from.the record.25
I think it would have been open to defendant to attempt to show abuse of *977prosecutorial discretion on a pretrial motion to dismiss the indictment. Although appellant did not directly seek such relief below, he did challenge the sufficiency of the indictment at trial by eliciting from Government witnesses admissions that they had no direct knowledge of any violation of the Federal statutes; they knew only of appellant's possession, which was presumptive of violation. I would construe this challenge as sufficient to raise the issue, and remand for plenary hearing on the indictment.
III. Cruel and Unusual Punishment
Appellant argues for the first time on appeal that Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed. 2d 758 (1962), bars punishment for possession and concealment of narcotics. The argument is not that the penalty inflicted is too harsh for the alleged crime. Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Rather, it is that the acts could not constitutionally be considered a crime, subject to criminal punishment of any nature, when performed by a drug addict wholly because of his drug addiction. Robinson held that it was cruel and unusual to punish an addict for his addiction; addiction was characterized as a diseased state which could not be considered a crime. Appellant states that there is no meaningful difference between the punishment of an addict for being an addict and the punishment of an addict for possessing the drugs his body compellingly craves.
However, as this court recently stated, the Robinson argument, “although neither remote nor insubstantial, is one which, in the light of the great weight of the cases which have imposed such punishment, is more properly to be made to the Supreme Court.” Castle v. United States, No. 17894, 120 U.S.App.D.C. -, 347 F.2d 492. The Supreme Court did not bar punishment for possession of drugs, use of drugs, or even the act of being under the influence of drugs.26 On the other hand, its references to the continued permissibility of punishing use, possession, etc, could hardly be taken to approve the punishment of persons not responsible for their conduct.27 Thus the Supreme Court stressed its view that addiction may occur “involuntarily” or “innocently.” Moreover, state court reluctance to extend Robinson seems to rest on a conclusive presumption of responsibility. For example, the New Jersey Supreme Court recently said:
“ * * * being under the influence of a drug is itself antisocial behavior. It is not some latent or passive proclivity; it is an active state, voluntarily induced and laden with a present capacity for further injury to society. * * * Robinson is not to the contrary.” [State v. Margo, 40 N.J. 188, 191 A.2d 43, 45 (1963) (emphasis supplied).]
This unexamined assertion of voluntariness is the linchpin of the court’s rationale.28
Indeed, the question of responsibility is the heart of the addict’s argument that he should not be punished for posses*978sion.29 Addicts have frequently been successful in this jurisdiction in raising the insanity defense.30 Other theories to excuse responsibility, such as “pharmacological duress,” have also been advanced. [See, e. g., Castle v. United States, No. 17894, decided Nov. 19,1964.] I submit that Robinson requires serious consideration of these claims as matters affecting responsibility. But I am constrained to agree that we cannot consider these claims now since they were not advanced below and no evidence was offered to show that here possession was compelled by addiction.
. See Goldstein, Police Discretion Not to Invoice the Criminal Process: Low Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543 (1960).
Some have argued that, in many respects, this discretion is salutary. “If every policeman, every prosecutor, every court, and every post-sentence agency performed his or its responsibility in strict accordance with rules of law, precisely and narrowly laid down, the criminal law would be ordered but intolerable.” Breitel, Controls in Criminal Law Enforcement, 27 U.Chi.L.Bev. 427 (1960). But see Goldstein, supra. And the limited resources allocated to police agencies may compel such choices as a practical matter.
. “If it is necessary to * * * legalize arrest for mere suspicion, then the grave policy and constitutional problems posed by such suggestions should be faced. If present restrictions on the laws of attempts or arrest place too onerous a burden upon the police because of the nature of modern crime, then such propositions should be discussed and resolved on their merits * * Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L. Bev. 603, 649 (1956).
. Compare Culombe v. Connecticut, 367 U.S. 568, 632, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927).
. Dissent from denial of rehearing en banc, Lloyd v. United States, No. 18049, Nov. 6, 1964, 119 U.S.App.D.C. -, -, 343 F.2d 242, 246.
. It allegedly contained 0.8 grains (.002 oz.) of the mixture. (See note 21 infra.) While the percentage of heroin was not alleged, a high percentage would be unusual. Ploscowe, Some Basic Problems in Drug Addiction and Suggestions for Research, in Drug Addiction : Crime or Disease 26 (Report, Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs, 1961).
. 21 U.S.C. § 174, 26 U.S.C. § 4704(a).
. 26 U.S.C. § 4744(a).
. These provisions are derived from the Uniform Narcotics Act, in force in 47 states and all United States territories, and enacted for the District in 1938. Conviction under this Act does not count as a prior conviction for purposes of the multiple offender provisions of the Federal narcotic laws.
. See my dissent from denial of rehearing in Lloyd v. United States, note 4 supra.
. Hutcherson’s second conviction, in 1959, arose from charges that he sold two capsules of heroin-hydrochloride mixture to an undercover agent, on each of two occasions.
. 26 U.S.O. § 7237. Second offenses under 26 U.S.O. § 4704(a) are treated differently from second offenses under 21 U.S.O. § 174: both have an optional fine of up to $20,000; but § 4704(a) carries a mandatory minimum of five years, with maximum of twenty, while violation of § 174 is punishable by imprisonment for ten to forty years.
. 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).
. 26 U.S.C. § 7207.
. 26 U.S.C. § 7201.
. For example, in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); and Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed. 2d 597 (1959), the Supreme Court decided only that the prosecutor could multiply counts in narcotics cases, so as to malee possible longer sentences if consecutive terms were imposed. Here the choice forecloses the judge from imposing a lesser sentence. Compare State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955) (prosecutorial choice), with State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961) (sentence of one day to ninety-nine years possible).
The sentencing aspect also makes plain that appellant has standing as a “person aggrieved.”
. Those State courts applying doctrines of equal protection to criminal prosecutions have stressed just this factor as central to their rationale. State v. Pirkey, 203 Or. 697, 281 P.2d 698, 702 (1955); State v. McDonald, 231 Or. 24, 361 P.2d 1001 (1961), cert. denied, 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962); Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956); State v. Twitchell, 8 Utah 2d 314, 333 P.2d 1075 (1959).
. The provision of the District statute, forbidding prosecution for an offense already tried under Federal law, did not originate with Congress but with the Uniform Narcotics Act. D.C.Code § 33 — 424.
. While sentencing disparities have existed since passage of the D. C. act, they have been greatly increased since. The District act’s penalties have not been changed in sixteen years, while those of the Federal acts were increased markedly in 1951 and 1956. At the same time, provisions were written into the Federal acts expressly recognizing the enforcement role of the District police. 18 U. S.C. § 1405.
. Remarks of Rep. Cooper, floor manager of the bill in the House, 102 Cong.Rec. 10688 (June 20, 1956). See also H.Rep. No. 2388, 84th Cong., 2d Sess. 2, 4, 5, 10-12, 64-65 (1956); S.Rep.No. 1997, 84th Cong., 2d Sess. 5-6 (1956); H.Rep. No. 2546, 84th Cong., 2d Sess. 13 (Conference Report 1956) U.S.Code Congressional and Administrative News, p. 3274.
. Congress failed to accompany tlie change in penalties with amendment of 21 U.S.C. § 174. As a consequence, it is still possible to bring addict possessors within the language of that Section and indictments under it are still the order of the day. Text at note 22 infra. See United States v. Garnes, 258 F.2d 530 (2d Cir. 1958); State v. Reed, 34 N.J. 554, 170 A.2d 419, 91 A.L.R.2d 797 (1961), reversing, 62 N.J.Super. 303, 162 A.2d 873 (1960). But compare United States v. Stever, 222 U.S. 167, 32 S.Ct. 51, 56 L.Ed. 145 (1911); United States v. Gainey, 85 S.Ct. 754; State v. Popiel, 216 Or. 140, 337 P.2d 303 (1959); State v. Harmon, 225 Or. 571, 358 P.2d 1048 (1961).
. Eldridge, Narcotics and the Law 52-56 (1962); compare New York statutes, enacted in 1956, which, discriminate among possessors of large amounts of drugs (one or more ounces of a mixture containing one percent or better of heroin, morphine or cocaine), moderate amounts (one eighth of an ounce or more), and minor amounts, New York Penal Law, McKinney’s Consol.Laws, c. 40 § 1751.
. Letter to United States Attorneys from Herbert J. Miller, Jr., dated August 3, 1964.
. Both the pattern of cases before this court and the Department of Justice’s comments suggest that 21 U.S.C. § 174 is rarely omitted from a narcotic indictment arising from possession. The question arises whether this occurs because its heavier penalties act as an inducement for guilty pleas under the lesser penalty statutes.
. It would appear from our experience that narcotics squad policemen usually specify the violations to be charged and invoke the Federal statutes even where possession of but a small amount of drugs is involved. How this affects prosecutorial discretion is unclear. Delegation of this prosecutorial discretion to police may be questionable.
a. Appellant’s petition for rehearing en tano cites a recent report by the Commissioner of Narcotics that:
“it is not the policy of the Bureau of Narcotics to advocate jail treatment of drug addicts and that its enforcement activity is directed toward the illicit trafficker. [The Commissioner] stressed the fact that ‘ * * * the Bureau does not concentrate its efforts on making possession-type cases against narcotic addicts. The enforcement effort of the Bureau is directed against the international and the interstate traffickers. In fact, 85 to 90 percent of the defendants prosecuted in the U. S. district courts for narcotic violations involve the illegal sale or smuggling of narcotics. Of the remaining 10 to 15 percent of cases which involve possession of narcotics, the quantities indicate clearly that the defendant is a trafficker and not merely an addict in possession of his own supply * * *.’ Hearings Before the Permanent Subcommittee on Investigations of the Senate Comm, on Government Operations, 88th Cong., 2d Sess. Pt. 3, p. 836 (1964).”
Outside the District of Columbia, the Bureau is the principal source of prosecutions under the federal statute.
On the basis of cases reaching this court, I think there is a serious question whether the United States Attorney and the Metropolitan Police Department follow a similar enforcement policy. It would not appear, for example, that the Commissioner’s statement that over sixty percent of the persons prosecuted on the basis of Bureau investigation are not addicts, id. at 809, is applicable in the District, where addict defendants seem to be the rule rather than the exception. Since addiction among traffickers is found only at low levels in the chain of supply, President’s Advisory Commission on Narcotic & Drug Abuse, FINAL REPORT 40 (1964), a low proportion of non-addict prosecutions could indicate that enforcement activity is not effectively directed toward the illicit traffickers. In the absence of more statistical data, of course, it is not possible to be certain of this.
. See my dissent in Lloyd v. United States, note 4 supra, 119 U.S.App.D.C. -, -, 343 F.2d 242, 246, 247.
. 370 U.S. at 664-665, 82 S.Ct. 1417.
Robinson has been narrowly read. E.g., State v. Margo, 40 N.J. 188, 191 A.2d 43 (1963); In re De La O, 59 Cal. 2d 128, 28 Cal.Rptr. 489, 378 P.2d 793, cert. denied, 374 U.S. 856, 83 S.Ct. 1927, 10 L.Ed.2d 1076 (1963); State of Louisiana, ex rel. Blouin v. Walker, 244 La. 699, 154 So.2d 368 (1963), cert. denied sub nom. Watkins v. Walker, 375 U.S. 988, 84 S.Ct. 96, 11 L.Ed.2d 45 (1964); Salas v. State of Texas, Tex. Cr.App., 365 S.W.2d 174, appeal dismissed, 375 U.S. 15, 84 S.Ct. 96, 11 L.Ed.2d 45 (1963). Compare People v. Davis, 27 Ill.2d 57, 188 N.E.2d 225 (1963); State of Missouri v. Bridges, 360 S.W.2d 648 (Mo.1962), where Robinson was followed.
. It seems to me that the failure to consider this obvious truth explains a California District Court of Appeals rejection of the Robinson rationale suggested here. People v. Zapata, 34 Cal.Rptr. 171, 220 Cal.App.2d 903 (1963) appeal dismissed, 377 U.S. 406, 84 S.Ct. 1633, 12 L.Ed.2d 495 (1964).
. See also People v. Ayala, 167 Cal.App.2d 49, 334 P.2d 61 (1959).
. Compare Durham v. United States, 94 U.S.App.D.C. 228, 242, 214 F.2d 862, 876, 45 A.L.R.2d 1430 (1954); United States v. Currens, 290 F.2d 751, 753 (3d Cir. 1961).
. United States v. Prince, D.D.C.Crim. No. 349-63 (March 17, 1963); United States v. Bell, D.D.C.Crim.No. 969-61 (Muy 22, 1962); United States v. Purcell, D.D.C.Crim.No. 487-62 (Jan. 14, 1963); United States v. Wallace Carroll, D.D.C.Crim.No. 383-62 (June 28, 1962).