dissenting.
I cannot join the majority opinion in this case, and I dissent from the disposition there made. Mental incompetents are favored in the law. We long have recognized the impact of mental illness or deficiency with respect to criminal responsibility or the capacity of an accused to assist in addressing the issues involved in a trial to determine culpability for criminal conduct. Section 7-11-302, W.S.1977, capsulizes the social position:
“(a) No person shall be tried, sentenced or punished for the commission of an offense while, as a result of mental illness or deficiency, he lacks the capacity, to:
“(i) Comprehend his position;
“(ii) Understand the nature and object of the proceedings against him;
"(in) Conduct his defense in a rational manner; and
“(iv) Cooperate with his counsel to the end that any available defense may be interposed.”
Section 7-ll-305(a), W.S.1977, then provides for the submission of a verdict form to a jury “by which the jury may find the defendant not guilty by reason of mental illness or deficiency excluding responsibility.” Wyoming statutory procedures with respect to the issues of responsibility or inability to stand trial because of mental illness or deficiency are designed to comport with what historically has been perceived as a valid humanitarian approach.
Analyzed in this way, however, these procedures are a means to an end and not simply an end in itself. In pursuing the means to an end, perhaps it is necessary to instruct the staff at the Wyoming State Hospital with respect to how the report should be written. The majority opinion, however, quotes the report which, in this instance, essentially is negative. Considering that the examination perhaps was limited because Engle refused to cooperate in connection with it, still, the physician stated in his report:
“In these two interviews, Mr. Engle manifested no obvious signs of mental illness or deficiency. There was no associational thought disorder, no disturbance of mood or affect, and no evidence for hallucinations or delusions or other major psychopathology. He was well oriented, there was no impairment of attention or concentration, memory was intact, and intellectual level was estimated to be high average.”
Given these findings by the examiner, it is difficult for me to conclude that they are not detailed. Because the findings are negative, I am unable to perceive what else the examiner might do to furnish an opinion as to whether Engle has a mental illness or deficiency or whether, as a result of any mental illness or deficiency, he lacked capacity to comprehend his position or to understand the nature and object of the proceedings against him or to conduct his defense in a rational manner or to cooperate with his counsel to the end that any available defense might be interposed. It is clear to me that the findings do consti*1314tute an opinion that Engle did not suffer from mental illness or deficiency or lack substantial capacity to appreciate the wrongfulness of his conduct at the time of the theft of the vehicle. Under the circumstances, recommendations as to where he should be held pending trial, or a determination of his fitness to proceed, seem unnecessary.
While the examiner may not have dotted his i’s or crossed his t’s, given his overall conclusion with respect to Engle, I have to ask whether it is really necessary to require a report that follows the outline of the statute. Is it possible that the court simply is saying that if one claims to be afflicted with a mental illness or deficiency, no report saying he is not satisfies the requirements of the statute?
The court has chosen to pursue additional issues as a matter of dictum, which apparently is uttered in its role as an advocate rather than its role as an arbiter. In addressing those additional issues, the majority opinion overlooks the provision of § 7-ll-305(b), W.S.1977, which provides, in pertinent part:
“ * * * Every defendant is presumed to be mentally responsible. The defendant shall have the burden of going forward and proving by the greater weight of evidence that, as a result of mental illness or deficiency, he lacked capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”
I note that the majority alludes to testimony by Engle’s investigator that he had obtained medical reports from three different hospitals relating to psychological matters. Curiously, no effort was made to introduce those reports at any stage of these proceedings. If they were favorable to Engle on the question of competency, then he was a victim of inadequate representation. However, the other possibility is that these reports also were negative, which would make it very understandable why counsel did not want to develop them further at either the proceedings on competency or at the trial. In fact, that does seem to he the most logical way to understand this record.
This brings us back to the threshold language in § 7-ll-303(a), W.S.1977, which states as follows:
“If it appears at any stage of a criminal proceeding, by motion or upon the court’s own motion, that there is reasonable cause to believe that the accused has a mental illness or deficiency making him unfit to proceed, all further proceedings shall be suspended.” (emphasis added).
I recognize that the common practice is to pursue the statutory examination procedure whenever the issue is raised. In this instance, however, once Engle had been to the state hospital and that report had been received, the reasonable cause to believe that Engle was afflicted with mental illness or deficiency no longer was present in the absence of additional information. The trial judge saw through this effort by Engle, which well might be described as specious. My interpretation of the record is that En-gle set out to cozen his defense counsel, his investigator, the prosecutor, the trial court, and the examiner at the Wyoming State Hospital. That technique did not work for him there, but it worked in this court. I must confess a suspicion on my part that Engle will chuckle all the way back to the state hospital, or wherever he chooses not to go, for his next incompetency examination. I shall await further developments with interest.
I would, however, affirm Engle’s conviction.