(dissenting) :
I fully agree with my colleagues that the record here disclosed no merit in the contention that there had been entrapment as a matter of law. Additionally without substance is appellant’s only other claim that the conviction should be reversed because of “inconsistencies and lack of candor in testimony presented by the Government.” Although addicted to narcotics, this appellant is also a wary peddler of narcotics. When arrested he had on his person six grams of heroin of a market value of some $750. At trial his counsel had sought through an expert witness to establish a basis for exculpation because of addiction at the time of the offense. Not once, by direction or indirection, in argument or otherwise, did counsel assert before the trial judge that Hansford was incompetent to stand trial. On this appeal, not once, either in his main brief or in his reply, was it contended that Hansford was not competent at trial.
I
I do not at all agree with the majority that “the only appropriate remedy” is a new trial. If this ruling by my colleagues is to stand despite our previous rejection1 of their premise, Congress once again should undertake a review of the novel aspects in which various “insanity” issues are being treated by this Circuit. It is high time that the burden of establishing the defense of insanity be placed upon the accused. If one charged with the commission of crime shall claim that by reason of insanity he is entitled to exculpation from responsibility, he should be required affirmatively to assert and prove the basis upon which he seeks to be excused.
*927My colleagues are now2 saying that ■one addicted to narcotics may not even be tried unless at trial his competency shall be established — even though, as here, the staff at St. Elizabeths had certified his competency and the Government’s expert testified that Hans-ford was without mental disorder.
We said in Winn v. United States 3:
“There is a vast difference between that mental state which permits an accused to be tried and that which permits him to be held responsible for a crime.”
This appellant had not challenged the certification of his competence to stand trial. This court en banc has held expressly that a trial judge
“is not bound to hold a hearing on the issue of competency when an accused is certified to be competent and there is no objection to such certification.” 4
The trial judge here had three days within which to observe this appellant and had the benefit not only of his demeanor but of his testimony. He was not required to hold that Hansford was competent for the trier’s ruling became clear from his action.5
Let us look further at the record. At trial Hansford informed his counsel that he wished to testify. The record of his testimony disclosed his history, narrated in great detail. His counsel asked that appellant explain “why you were using narcotics at this time, if you are?” He answered:
“Well, for one reason, I — it gives me a relief from strain that I feel; I frequently feel like I am under strain and when I am using narcotics it more or less gives me a relief from that and—
“Q. What kind of strain, David?
“A. Well, I imagine it’s some sort of tension, irritation.”
The appellant explained his decision “to go to trial in this case” in that he needed some help,6 and that his only chance of going to a hospital or getting some type of treatment would be through *928the court.7 He was quite aware of the possibility that his tactics might again succeed.
“[A]nd if I pleaded guilty to the charge, well, I would more or less be sent to prison and I don’t think I could get the type of help that I needed in prison, so I said I’d just rather run the risk of going to trial because there I would at least have a small chance of going to the hospital, some time [sic, kind?] of chance, anyway, for going to the hospital.”
Such was the background against which my colleagues now order a new trial, purportedly because they themselves raise an issue as to Hansford’s competency to stand trial. The Supreme Court adopted as a test of the competency of an accused
“whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788(1960).
As noted, there was no suggestion of a claim that this appellant failed to meet that test. The very facts of the instant case, the record of the trial proceedings and our precedents overwhelmingly require rejection of the course my colleagues now demand. Even were there a justifiable basis for doubt that Hans-ford’s mental capacity fell short of meeting the prescribed test, at most the proper course would be to remand for a determination of competency by the trial court. That was the procedure adopted by the Supreme Court as late as May 31, 1966 in Rees v. Peyton, 384 U.S. 312, 86 S.Ct. 1505 (1966) when it remanded for a hearing, meanwhile retaining jurisdiction pending report by the District Court of its findings and conclusions. A remand was ordered where a District Court hearing had been denied in a section 2255 proceeding in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068 (1963). A remand for a hearing on the issue of the prisoner’s sanity at the time of trial was commanded in Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). The “uncontradicted testimony of Robinson’s history of pronounced irrational behavior” was enough for the Court in Pate v. Robinson, 383 U.S. 375, 385-386, 86 S.Ct. 836, 842 (1966) where six years had elapsed following the conviction. And all any reader need do to understand Dusky v. United States, supra, is to examine the bizarre background detailed by the Court of Appeals in Dusky v. United States, 271 F.2d 385 (8 Cir. 1959). There simply is nothing on this record even remotely comparable to the circumstances underlying the Supreme Court’s ruling in the cases mentioned.
I find it difficult to take seriously the reference in my colleagues’ footnote 7 to the Supreme Court’s “increasing concern” as distinguished from our own in view of repeated actions by this court when we have considered the problem of competence to stand trial. In Lloyd v. United States, 101 U.S.App.D.C. 116, 247 F.2d 522 (1957), we noted that in several cases we had found it necessary in the interests of justice to direct the District Court to hold a hearing to determine nunc pro tunc, a defendant’s competency to stand trial. We directed, as here pertinent, that if the District Court found the appellant competent to stand trial, he was to be entitled to no relief. And compare Lloyd v. United States, my note 2, supra. Stone v. United States, 358 F.2d 503 (9 Cir. 1966), cited by my *929colleagues, adds nothing to our own legal literature in situations arising under 18 U.S.C. § 4244; see, e.g., Gunther v. United States, 94 U.S.App.D.C. 243, 215 F.2d 493 (1954). Our concern respecting the issue of competency was emphatically reflected in the unanimous action of this court, sitting en banc, in Wells v. United States, 99 U.S.App.D.C. 310, 239 F.2d 931 (1956). Under the circumstances there outlined, we remanded with the direction that if the District Court determined that Wells was incompetent when tried, the conviction should be vacated. But now, despite our repeated precedents, a new trial is ordered.
Enough has been said to demonstrate, I suggest, that the innovations contemplated by my colleagues run counter to a thoroughly established body of law, both in the Supreme Court and here. Not only have we not equated addiction to narcotics with such mental illness as to render an accused incompetent, without more, but where an issue of competency at the time of an error-free trial has nevertheless been noticed upon motion of the accused, our settled procedure has called, not for a new trial, but for remand on the single point. We do not at all have here the “difficult questions of state-federal relations posed by [such] rulings” as the Supreme Court undertook to resolve in Pate v. Robinson.8
Rather, this appellant’s counsel, the prosecutor and the judge joined in extended colloquy as they canvassed possibilities for treatment. A St. Elizabeths Hospital spokesman took the position, as the judge reported, that it was not equipped to treat those who are victims of addiction to narcotics as distinguished from patients who are mentally ill. With St. Elizabeths thus eliminated, the judge voiced doubt as to the efficacy of a sentence to Lexington since Hansford had previously undergone treatment there. Still the judge felt it necessary to observe:
“The answer is, there just isn’t any ideal solution to this problem, there just isn’t any, and I guess that all the Court can do is follow the law and hope that Congress will somehow devise a program to take care of it, and what that program will be I honestly don’t know, but it’s something that looks like the Court can’t do except to take advantage of what Congress has provided, which is Lexington.”
The judge followed the law. He followed our decisions and the applicable statutes. My view is that this court also should “follow the law and hope that Congress will somehow devise a program to take care” of problems like this.
I feel that nothing is to be gained by putting the Government, once again, to a protracted trial which in net result will establish no more than that Hans-ford is guilty of the charge laid in against him and that for many years, though not mentally ill, he has been addicted to narcotics. At that point the case will be right back where it was when the following occurred, as the transcript shows:
[Trial Counsel]: “Your Honor, may I say one more thing about Lexington: The choice of whether or not to send this defendant to Lexington is up to the Bureau of Prisons, and there is nothing that can be done to direct their choice one way or the other.
“The Court: I can put right much pressure on them.
[Prosecutor]: “Your Honor, I believe they would follow your recommendation.
“The Court: Well, they usually have. There have been occasions in which they haven’t, but I can tell you in this case I would be inclined to follow it up personally, and I believe that I could achieve that result.” 9
II
And that is what this record shows us. This peddler’s tactics had proved successful in a previous trial on other *930charges,10 and again a new trial is being ordered. My colleagues say, as they must, that St. Elizabeths had found him competent to stand trial. As I noted, and as my colleagues concede, the appellant did not challenge the hospital report nor did he request a hearing on his competence to stand trial. All the talk about withdrawal symptoms evaporates upon examination of our record for there was no evidence whatever that this appellant was experiencing any such symptoms. My colleagues say a competency hearing may be required “if it appears that a defendant may be suffering from withdrawal symptoms during trial.” (Emphasis added.) But he was not.
They then say the “trial judge in this case, having observed appellant, may have thought him competent.” (Emphasis added.) Of course he did. There was no suggestion by appellant, by his counsel or otherwise that the appellant was experiencing “perspiration, waves of gooseflesh, muscle twitch, body aches” and all the rest of it. The judge revoked appellant’s bail when he learned that Hansford was fencing for thieves during the trial and thus was obtaining funds to continue a habit which satisfied him and made him feel comfortable. His demeanor obviously permitted the judge to “have thought him competent.”
I confess I do not know where my colleagues are taking us. It is common knowledge that many accused chargeable with serious crimes are or have been addicted to narcotics. Must they — ipso facto — receive a hearing to determine their competency to stand trial even where they raise no such issue? In this very case, St. Elizabeths staff says the appellant is without mental disorder. The hospital authorities certified he is competent. Yet my colleagues rule otherwise because he is admittedly addicted to narcotics. My colleagues here would transform the court into a social laboratory, not governed by rules of law applicable to appellate review, but by the views of text writers whose .works 11 may or may not have standing in the psychiatric profession. What are District Judges to do if not “to follow the law”?
For one thing, they can revoke the bail of any previously released narcotics addict the moment his case is assigned for trial. They can see to it that the accused is taken off narcotics.12 At least when trial goes forward, the accused can thus be brought into court without giving rise to a later opportunity to gain a new trial on any such ground as my colleagues here advance.
Another thing the District Judges can do is to examine the writings of this court and distinguish the holdings of our opinions from the pages of dictum so frequently uttered.13 Some of us *931hope that by virtue of our previous rulings, stare decisis still has some vitality, both here and in the District Court. Neither bench nor bar can possibly know of the divisions of viewpoint among the judges of this court unless the non-sitting active judges have been asked to pass upon a petition for rehearing en banc, filed by a party to the case. The court may sit en banc only when a majority of the active judges shall so vote.14 Even when as many as four non-sitting judges may have urged that the court, sua sponte, sit en banc to consider some novel proposal, those outside the court do not know it. Thus it is that often enough — even too often — two judges who constitute a majority of a three-judge panel seem to speak for the entire court. Particularly are we aware of an increasingly expanded approach to problems involving exculpation from responsibility for crime. An accused, faced with overwhelming evidence of guilt exclaims “I must have been out of my mind to do a thing like that” when, presto, he may seek a verdict of not guilty by reason of insanity.
And so it goes. Now when it appears that an accused, addicted to narcotics, tried in accordance with the standards prescribed in McDonald v. United States15 may lawfully be held criminally responsible for his offense, my colleagues would order a new trial. It is ordered that the District Court determine whether he is even competent to stand trial although he never claimed that he was not. The far-reaching consequences of what is being done in this case are only dimly to be discerned.
For my part, I have become quite persuaded that Congress should place upon an accused the burden of establishing his entitlement to a verdict of not guilty by reason of insanity. Like any other affirmative plea for relief, let it be alleged and demonstrated by him who seeks exculpation from criminal responsibility. As for the competence of an accused to stand trial in the first place, let us follow the statute. D.C.Code § 24-301 (1961) provides that when “it shall appear to the court from the court’s own observations, or from prima facie evidence submitted to the court, that the accused is of unsound mind or is mentally incompetent so as to be unable to understand the proceedings against him or properly to assist in his own defense,” the judge is to order that person’s commitment until he is competent to stand trial. And when such an unchallenged determination shall have been made, as here, by the authorities at the hospital, let us hold him to it.
. Heard v. United States, 121 U.S.App.D.C. 37, 39 and n. 3, 348 F.2d 43, 45 and n. 3 (1964). We denied a rehearing en banc, 121 U.S.App.D.C. at 42, 348 F.2d at 48 (1965). There we specifically held that a mere showing of narcotics addiction, without more, does not constitute “some evidence” of mental disease or “insanity” so as to raise the issue of criminal responsibility. We refused to hold that every addict’s case is an insanity case.
. Compare Lloyd v. United States, 119 U.S.App.D.C. 373, 343 F.2d 242 (1964) where we denied rehearing en bane, and where the Supreme Court denied certiorari, 381 U.S. 952, 85 S.Ct. 1809, 14 L.Ed.2d 725 (1965); and Adams v. United States, 119 U.S.App.D.C. 152, 337 F.2d 548, rehearing en banc denied (1964). This court en bane earlier rejected the contention of one or two of our colleagues as to their construction of Robinson v. State of California, 370 U.S. 660, 662, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); cf. Castle v. United States, 120 U.S.App.D.C. 398, 347 F.2d 492 (1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965). But see our discussion in Heard v. United States, supra note 1.
. 106 U.S.App.D.C. 133, 135, 270 F.2d 326, 328 (1959).
. Whalem v. United States, 120 U.S.App.D.C. 331, 335, 346 F.2d 812, 816, cert. denied, 382 U.S. 862, 86 S.Ct. 124 (1965); and see Green v. United States, 122 U.S.App.D.C. 33, 35, 36, 351 F.2d 198, 200, 201 (en bane, 1965). Where a proper showing has been made, we have a very different situation. See, e. g., Coates v. United States, 106 U.S.App.D.C. 389, 273 F.2d 514 (1959), and after remana, 109 U.S.App.D.C. 200, 201, 285 F.2d 280, 281 (1960), cert. denied, 366 U.S. 914, 81 S.Ct. 1089, 6 L.Ed.2d 237 (1961).
. Green v. United States, supra note 4. Of course the issue of Hansford’s sanity at the time of the offense had been fully explored. The judge ruled against him as properly he was free to do. Horton v. United States, 115 U.S.App.D.C. 184, 317 F.2d 595 (1963); Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616 (1963), rehearing en banc denied (1964); Rivers v. United States, 117 U.S.App.D.C. 375, 330 F.2d 841, rehearing en bane denied (1964).
. The trial judge might well have concluded that this appellant is a shrewd schemer.. At an earlier trial on other charges in 1960, he had claimed entrapment as he-did here. He testified then that he was an addict and that he was a voluntary patient at the D.C. General Hospital. His conviction was reversed. Hansford v. United States, 112 U.S.App.D.C. 359, 360, 303 F.2d 219, 220 (1962).
. Hansford’s testimony at the very end was not offered until after he had seen the course the trial was taking. The judge revoked his bail after Hansford disclosed that he was supporting his addiction by acting as a fence for thieves even while the trial progressed. Hansford thereafter sought release on bond and appealed from a denial in the District Court. He succeeded in persuading a dissenting judge that “if released” he would hope “to enroll” in a narcotics addiction program. Hansford v. United States, 122 U.S.App.D.C. 320, 324, 353 F.2d 858, 862 (1965).
. 383 U.S. 375, 86 S.Ct. 836 (1966).
. Apparently that is what he did. See Hansford v. United States, supra note 7.
. See notes 6 and 7, supra.
. Certainly their views and their standing have not been demonstrated to be authoritative. See generally, 6 Wigmobe, Evidence § 1700 (3d ed. 1940). More importantly, those views obviously were not shared by the staff at St. Elizabeths or by the Government’s expert whose testimony the trial judge was free to accept.
. The evidence here showed that the “acute brain syndrome” my colleagues talk about “simply means that a physiological condition has manifested itself quickly. It lasts a relatively short time. It is called acute. It is temporary.” And it may be induced by “four or six” alcoholic drinks as well as by self-administered narcotics. Hansford had so induced his own “acute brain syndrome” before visiting the examining expert. But he had none in St. Elizabeths.
. See, e. g., Holmes v. United States, 124 U.S.App.D.C. -, 363 F.2d 281 (1966), where the judgment of conviction actually was affirmed, and the accused was found entitled to no relief under § 2255. Yet because of the Holmes dictum, I suppose some defense counsel are now being invited to propose innovation in our trial system contrary to our practice, without standards, indeed with the announcement of a technique which other jurisdictions have rejected.
No citation is required to demonstrate the extensive dicta to be noted in yet other cases where data relevant for clinical purposes are being confounded with *931legal evidence essential for a trial determination of legal responsibility for the offense charged. See, e. g., Rollerson v. United States, 119 U.S.App.D.C. 400, 343 F.2d 269 (1964) and Henderson v. United States, 123 U.S.App.D.C. 380, 360 F.2d 514 (1966).
. Of course, if counsel for one of the parties shall move for rehearing en banc after an opinion has been issued, all sitting judges are free to express their views, then having had the benefit of the briefs and an opportunity for consideration of the record in the questioned case.
. 114 U.S.App.D.C. 120, 312 F.2d 847 (en banc, 1962).