(concurring specially) — I concur in the majority opinion. However, I find myself in accord with some of the views expressed by Chief Justice Weintraub of the Supreme court of New Jersey, in a concurring opinion in State v. Lucas (1959), 30 N. J. 37, 152 A. (2d) 50; he says (p. 83):
“No one will dispute that society must be protected from the insane as well as the sane. The area of disagreement *595is whether a civil or a criminal process should be employed when forbidden acts have been committed. If we could think of a conviction simply as a finding that the mortal in question has demonstrated his capacity for anti-social conduct, most of the battle would be decided. What would remain is the employment of such post-conviction techniques as would redeem the offender if he can be redeemed and secure him if he cannot. The proposal before us, however, does not relate to post-conviction disposition but rather to the question whether the criminal process shall be invoked to adjudge a basis for deprivation of liberty. It is in that frame of reference that we are asked to abandon M’Naghten in favor of another concept of insanity which will excuse. ...”
Obviously, the “post-conviction techniques” cannot operate if the death penalty is imposed. I quote again (p. 87):
“For all practical purposes the furor over M’Naghten is confined to the disposition of offenders convicted of murder. It is the death penalty which sparks the quarrel. Whatever may be their thesis of personal blameworthiness and of justice to the individual, I should think that all thoughtful persons would at least pause when judging a man at the portal of death. All doubts must congregate there. The ultimate responsibility with respect to capital punishment is, of course, legislative. But there is an area within the present statutory scheme in which the judiciary can and should move to accommodate the divergent views. I refer to the admission of full psychiatric testimony for the jury’s consideration in determining whether a man should live or die.
“I have no doubt that such testimony belongs in the case for that purpose. I am convinced the Legislature so intended when in resolving a controversy over capital punishment it provided that the jury shall fix the punishment. State v. White, 27 N. J. 158 (1958). The mental condition of a man is so inseparable from the issue of a just disposition— just to him and to society — that it is inconceivable that the Legislature intended to exclude it.
“The functions of the mind are an integral part of the criminal event itself. The law requires a mens rea. The specific mental operations necessary for guilt, be they premeditation, deliberation, and willfulness, or a felonious intent in a felony murder, cannot be isolated from the total functions of the mind of the offender. To limit the proof to that part of the total mental activity which technically *596bears upon the issue of guilt is to conceal part of the event itself. The whole truth should be disclosed so that in deciding the question of life or death the jurors will know who it is who stands before them. That disclosure is necessary for the moral judgment the jurors must reach.”
To follow this suggestion would remove the “straight jacket” of the legal concept of insanity of which the psychiatrists justifiably complain, so that in deciding the question of life or death the jurors will know, as Chief Justice Wein-traub says, “who it is who stands before them.” On the issue of guilt, the issue should continue to be as stated in the instructions given in this case.