(concurring in part, dissenting in part):
As well stated in the opinion of the court the evidence on the issue of insanity created a factual issue for the jury to decide. I concur, therefore, in the decision that a directed verdict of acquittal by reason of insanity was properly denied.
As to the instructions to the jury I find myself in respectful disagreement with the opinion of the court. The matter is important both in general and in the particular case. Its general importance is evidenced by previous decisions of this court. As the present opinion demonstrates, we have several times pointed out the appropriateness of consideration by the jury of narcotic addiction in combination with other evidence of mental disease in determining whether a defense of insanity is established.1 There was abundant evidence, other than narcotic addiction, to support such an instruction. The administration of justice in these cases should I think conform with the decisions which have considered and supported such an instruction, the salutary character of which can hardly be questioned.
The matter is important in the particular case because of the difference in the law’s disposition of one convicted of crime and one acquitted by reason of insanity. The former is ordinarily imprisoned, followed by release into the community when his sentence is ended. The latter is commited to a mental institution, where there is greater opportunity for rehabilitation before he returns to the community and therefore greater likelihood of advantage to the individual as well as to the community. This view 2 has recently been expressed by the Court of Appeals for the Second Circuit, as follows:
The criminal law, it has been said, is an expression of the moral sense of the community. The fact that the law has, for centuries, regarded certain wrong-doers as improper subjects for punishment is a testament to the extent to which that moral sense has developed. Thus, society has recognized over the years that none of the three asserted purposes of the criminal law — -rehabilitation, deterrence and retribution — is satisfied when the truly irresponsible, those who lack substantial capacity to control their actions, are punished.
What rehabilitative function is served when one who is mentally incompetent and found guilty is ordered to serve a sentence in prison? Is not any curative or restorative function better achieved in such a ease in an institution designed and equipped to treat just such individuals? And how is deterrence achieved by punishing the incompetent? Those who are substantially unable to restrain their conduct are, by definition, undeterrable and their “punishment” is no example for others; those who are unaware of or do not appreciate the nature and quality of their actions can hardly be *995expected rationally to weigh the consequences of their conduct. [Footnote omitted.]
United States v. Freeman, 357 F.2d 606, 615 (2d Cir.).
The omission of an instruction that the jury could consider narcotic addition in combination with other evidence of mental disease, on the issue of criminal responsibility, leaves imprisonment effective whereas if the instruction had been given, hospitalization might have resulted. We cannot be certain of course; but the jury needed the guidance to which the accused, the jury and the community were entitled.
True it is the instruction offered by defense counsel was not in acceptable terms. But it did point up, as had the evidence, the relation of the admitted addiction to the defense of insanity. Indeed, the trial court did not entirely neglect the problem created by the use of drugs; for it instructed the jury it could consider whether at the time of the offense charged defendant was using drugs. But this did not meet the real point, which was that the addiction itself, not the use of drugs at the particular time, could be considered by the jury in combination with the other evidence of mental disease, in deciding the issue of criminal responsibility.
The otherwise generally high quality of the instructions does not cure the matter, as it seems to me, nor does the persuasiveness of the court’s opinion in demonstrating the possibility that the jury bridged the gap on the basis of the general language the court quotes; for this language did not call the jury’s attention to the very thing that was critical under the law, the relationship of the accused’s addiction to his insanity defense.3
. Indeed addiction alone may be severe enough to raise the insanity defense to a level proper for jury consideration. Green v. United States, 122 U.S.App.D.C. 33, 351 F.2d 198; United States v. Freeman, 357 F.2d 606 (2d Cir.) where alcoholism was also present; cf. Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616, dissenting opinion. It is unnecessary now to pursue this subject in passing upon the more limited problem before us.
. I referred to this idea briefly in Douglas v. United States, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59-60, and see Overholser v. O’Beirne, 112 U.S.App.D.C. 267, 273, 302 F.2d 852, 858; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 312, 314, 281 F.2d 943, 947, 949. See, also, Tydings, A Federal Verdict of Not Guilty by Reason of Insanity and a Subsequent Commitment Procedure, 27 Md.L.Rev. 131, 140 (1967).
. An instruction requested by defense counsel, while not accurately aimed at the subject, did suggest it:
The theory of the defense is that at the time of the crimes in question, the defendant was suffering from an abnormal condition of the mind called a schizoid personality disorder, and that this mental abnormality was associated with another abnormal condition of both mind and body, namely narcotic addiction.
This requested instruction concluded:
Xou are further instructed that in considering to what extent defendant’s narcotic addiction was a mental abnormality, you may consider the causes of his addiction: whether his addiction was the voluntary act of a mentally normal person or whether it was the act of a person suffering from underlying abnormality.
This was followed by a citation of Heard. [Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43.]