(dissenting):
I respectfully dissent. I am not persuaded that the opinion of this court in Lee v. Wiman, 5 Cir., 1960, 280 F.2d 257, was incorrect on the precise issue of petitioner’s asserted lack of mental capacity to stand trial. This issue had the detailed consideration of the court then and we followed that decision in the opinion of the court which is now vacated, Lee v. State of Alabama, 5 Cir., 1966, 364 F.2d 945, modified on rehearing, Lee v. State of Alabama, 5 Cir., 1967, 373 F.2d 82. Now the majority is overruling that decision despite the fact that the transcript of petitioner’s state court trial is not before the court.
It goes without saying that the conviction of an accused person when he is legally incompetent violates due process of law. Pate v. Robinson, 1966, *109383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. This proposition is not new to the law. 4 Blackstone’s Comm, on the Law of England, pp. 24, 25. Indeed such a conviction would be more than a violation of due process of law; it would be inhumane and unworthy of a civilized people and is not to be countenanced. That, however, is not the question presented. Rather, the question is whether petitioner has made a showing, sufficient to warrant a hearing, that the state trial judge committed error and thus denied him due process of law by failing to set the necessary procedural machinery in motion to inquire into petitioner’s mental capacity to stand trial.
It is undisputed that no such hearing was sought at the time, and that no hearing on the issue now presented has ever been accorded petitioner in the intervening period. Many judges have heard his plea over the years but until now, no court has found a prima facie showing that the facts known to the state trial judge suggested petitioner’s incompetency or lack of capacity to stand trial to the degree necessary to have required such an inquiry.
The majority’s error, it seems to me, flows from two basic flaws in reasoning. First, the holding in Pate v. Robinson, supra, is overly extended. That case, like this case, turns on its own peculiar facts. The court there had the trial transcript before it and it disclosed that a serious question as to Robinson’s mental capacity to undergo trial was in issue before the trial court. This fact and the subsidiary facts on capacity convinced the court that the trial court should have conducted a separate hearing on the issue. The defense there was based on insanity at the time of the commission of the offense and also insanity at the time of trial.
Here the defense was based purely on insanity at the time of the offense. Petitioner had two jury trials on this question, the first being a separate hearing wherein he was found sane by a jury, and the other being the trial on the merits where his sole defense was insanity at the time he murdered his father. See the opinion of the Alabama Supreme Court on the appeal from the conviction. Lee v. State, 1944, 246 Ala. 343, 20 So.2d 471. That opinion states that much evidence was offered on the issue of sanity at the time of the commission of the offense and that all of the experts agreed that petitioner was an incurable paranoiac. And, as the majority here points out, the state trial court, immediately prior to the trial on the merits, had the report of the Alabama Lunacy Commission before it. It stated that petitioner was insane at the time he committed the offense and at the time of examination which was some three months before the trial. Without more, this would indicate that appellant was mentally incompetent to stand trial but there is more.
As was pointed out in Lee v. Wiman, supra, the report of the Lunacy Commission, like the evidence on the trial, was addressed to the question of mental accountability for the commission of the crime. The majority is satisfied to stop at this point and say that these facts necessarily show that the state trial court should have required a separate inquiry into appellant’s capacity to undergo trial. This is simply not the law and the egregious error in holding otherwise no doubt stems from the second flaw in reasoning.
The majority opinion wholly ignores the settled difference between the degree of capacity involved in resolving mental accountability for the commission of an offense and that required to warrant postponing a trial based on lack of mental capacity to undergo trial. In Dusky v. United States, 1960, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, the court stated the test to determine mental capacity to stand trial as being whether the defendant “ * * * 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 understand*110ing of the proceedings against him.” In James v. Boles, 4 Cir., 1964, 339 F.2d 431, the court citing Lyles v. United States, 1957, 103 U.S.App.D.C. 22, 254 F.2d 725, 729, 730, pointed out that a criminal defendant may have a mental disease, and the mental disease may have been the cause of his criminal act, and he may be suffering from the same disease at the time of his trial, but he may nevertheless be competent to stand trial. The test was stated as being whether he can understand the nature of the charges against him and can assist in his defense. In Lee v. Wiman, supra, this court noted the difference in the tests to be applied, and rejected petitioner’s claim that he was then entitled to a hearing on his competency to stand trial. The court stated that the claim could be sustained only by ignoring completely the test of insanity which would preclude a person accused of a crime from being put on trial. We will not detail the factual basis for the court’s conclusion in this regard for it is well stated in the opinion.
It is sufficient to say that petitioner was a member of a prominent Alabama family. He was tried in his home county. He was not indigent. The opinion on the appeal of the case on the merits, Lee v. State, supra, indicates that he received the full protection of the law. There was not the slightest suggestion, as distinguished from Pate v. Robinson, supra, that his mental capacity to undergo trial was in doubt. He was above average in intelligence, had attended college, and testified in a clear and lucid manner that he had no recollection of killing his father. It was later, when he was represented by new counsel, that the point was first made that there should have been an inquiry into his capacity to undergo trial. Ex parte Lee, 1946, 248 Ala. 246, 27 So.2d 147. The point was asserted as a basis for a claim of negligence on the part of trial counsel and not as an error on the part of the state trial court. It was rejected by the state court.
As the years have passed, petition has followed petition in the Federal courts and relief on the same question has been repeatedly denied without a hearing. Undoubtedly Pate v. Robinson gave petitioner renewed hope but it changed neither the law nor the facts. It did add a new procedure of substituting a new trial for a present hearing in the habeas court on past incapacity and it remains to be seen whether this is a rule without exceptions. It also remains to be seen whether the rule fashioned by the majority here is to have exceptions. If it stands it will open prison doors for anyone who on his trial asserted a substantial defense based on a lack of mental accountability but who did not assert that he was incompetent to undergo trial. The evidence on the issue of mental accountability will not furnish, ipso facto, the basis for holding the trial court in error where no separate hearing on the separate question of mental capacity to stand trial was held. All that is left then, as here, will be a determination by the habeas court of whether it can presently conduct an adequate hearing on that capacity question; if not, Pate v. Robinson applies and the alternative is a new trial or discharge.
I would require more of a petitioner than this. Substantial evidence to show that he could not understand the charge against him or that he could not assist in his defense should be the minimum; that has neither been required nor shown in this case.1
. The suggestion of petitioner having suffered a great wrong over the years as a result of the citation by the Supreme Court of Alabama in Ex parte Lee, 27 So. 2d 147, of Title 15, § 426 instead of Title 15, § 428, Code of Alabama, is a mere makeweight, although, I hasten to add, X am sure it is not intended as such. No court since then has ever recited that a § 426 hearing was accorded petitioner. The fact, as stated, is that he has never had a hearing insofar as the record discloses in any court on the question of his mental capacity to undergo trial.