(dissenting):
I respectfully dissent.
It is a violation of rights of constitutional dimension for a defendant charged with crime to be compelled to stand trial if he is not mentally competent to assist in his own defense. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) (per curiam); Bush v. McCollum, 231 F.Supp. 560 (N.D.Tex.1964), aff’d, 344 F.2d 672 (5th Cir. 1965); Greer v. Beto, 379 F.2d 923 (5th Cir. 1967); Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967). If there is a "bona fide doubt” of defendant’s competence, arising either before or during trial, the judge on his own motion must require a hearing. Pate v. Robinson, supra. The doubt need not be quickened by formal evidence; inter alia, defendant’s demeanor *1003during trial is relevant, Pate v. Robinson, supra, as are statutory reports filed with the court for the information of the judge. Lee v. State of Alabama, 386 F.2d 97 (5th Cir. 1967).
I do not understand the majority to disagree with these principles, but to rest their conclusion on this issue, as did the district judge, on weight of the evidence. Somehow the evidence has become lost in the forest of Tyler’s past criminal record, the nature of the charge, and the feeling of the majority that he was lucky to escape the death penalty. Constitutional protections are not reserved for good people and denied to bad, nor does competence to stand trial go by the board because the crime charged is serious.
Sufficiency of the evidence in this case is not correctly approached from the viewpoint of whether the trial judge upon a hearing on competency made an erroneous determination that the defendant was competent to stand trial or failed to take sufficient evidence on the issue of competency. Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965); United States v. Davis, 365 F.2d 251 (6th Cir. 1966), and Powell v. United States, 125 U.S.App.D.C. 364, 373 F.2d 225 (1966) relied on by the majority, are cases of that nature. Correctly considered, the issue is whether the evidence raised a bona fide doubt so as to require the trial judge to hold a hearing. So viewed the evidence was more than adequate.
The Ninth Circuit phrases the question this way:
“But as Pate v. Robinson, supra, makes clear, the question here is not why counsel failed to request a competency hearing or why the court failed to hold one on its own initiative, but whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to White’s competency to stand trial.”
Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967).
The motion (Item 3, Appendix to majority opinion) filed by counsel on the second day of trial, and denied by the court, was not alone sufficient to raise a bona fide doubt, but it focused the court’s attention on the question of competency.1 The written inquiry made by the jury and quoted in the majority opinion is hardly mistakeable. The doubt in the mind of some of the jurors, caused by Dr. Brown’s testimony, is expressly spelled out. The district court, and the majority, reach the anomalous conclusion that testimony sufficient to raise a doubt in the minds of jurors who did not have the benefit of the motion to focus them on the question was not sufficient to raise a bona fide doubt in the mind of the judge who had been put on notice by the motion and had denied it.
The issue of Tyler’s credibility does not expunge the serious doubt revealed by the written record. If all that Tyler said is disbelieved the record still stands. But in passing it should be noted that the jury’s inquiry substantiates Tyler’s oral description of events at the trial.
The evidence of bona fide doubt was adequate. The trial court was required to hold a hearing to determine Tyler’s competence to stand trial. It did not do so. Therefore, I dissent.
. The majority misread the motion. It alleged in numerous particulars the existence of present mental infirmities, permanent in nature and not susceptible of change between time of offense and time of trial.