The opinion
BAZELON, Circuit Judge
(dissenting).
Appellant was indicted in another case, •on July 29, 1958, for breaking and entering a grocery store. In that case the District Court, on October 13, 1958, ordered his commitment to District General Hospital for a thirty-day mental examination limited in scope to a determination of his mental competency to stand trial. On November 13, 1958, Dr. James A. Ryan, one of six Assistant Chief Psychiatrists of the Hospital, rendered an examination report responsive to the limited inquiry described in the court’s order: “Psychiatric examination reveals Mr. Jones to be sane, competent, and capable of participating in his own defense.”
The attack upon a hospital attendant- — ■ which is the subject of the present indictment — -took place on November 15, 1958, two days after the submission of Dr. Ryan’s report. In connection with this indictment, the District Court also ordered a mental examination on February 6, 1959, and again for the limited purpose of determining appellant’s competency to stand trial. This time, however, the appellant was sent to St. Eliza-beths Hospital. Its Superintendent reported, on April 7, 1959, that appellant “is mentally competent to understand the proceedings against him and to properly assist in his own defense.”
The present case, involving the assault on the hospital attendant, was tried in April 1959. The breaking and entering case was tried in June 1959. The defense of insanity was raised in each case. Dr. Ryan testified at both trials that he *252 found Jones of sound mind. Dr. Platkin of St. Elizabeths Hospital testified in both cases that he found Jones to be suffering from mental illness and that the alleged crimes were the product of that illness. Dr. Platkin’s testimony in the breaking and entering case was supported by that of Drs. Cushard and Cody, also of St. Elizabeths. 1
Jones was convicted in both cases and appealed them. Before hearing in the appeal from the breaking and entering conviction (Appeal No. 15327), the Government moved to remand the case solely on the authority of Winn v. United States, 1959, 106 U.S.App.D.C. 133 , 270 F.2d 326 ; and Calloway v. United States, 1959, 106 U.S.App.D.C. 141 , 270 F.2d 334 , 2 which require a “complete and thorough ‘type of examination * * * for a proper determination of the issue of responsibility * * ” 106 U.S.App.D.C. at page 135, 270 F.2d at page 328. This court granted the motion, vacated the judgment of conviction and remanded the case for a new trial. 3
The Government has not made a similar request for remand in the present appeal notwithstanding its concession here that “the testimony in both cases of Dr. Ryan encompasses the same period of examination and the same diagnosis.” It reasons that the examination in the present case was had two days before the alleged crime and “nothing would be stronger for the purposes of any case than a virtually concurrent examination by a doctor specializing in psychiatry.”
The short answer to this contention, however, is that the time at which the examination is conducted is not the sole element which determines its adequacy for the issue at hand. 4 Plainly a psychiatrist’s mere observation of an individual, even while he is engaged in a criminal act, would not disclose the information essential to determine his mental state on the issue of responsibility. For that purpose, an investigation of some depth is essential. Carter v. United States, 1957, 102 U.S.App.D.C. 227 , 236, 252 F.2d 608, 617 . That is why we said in Winn: “It is not to be assumed * * * that a physchiatrist who has been ordered to prepare an opinion as to a man’s trial competency will conduct the type of examination which is-necessary to provide the trier of the facts with the information essential for a proper determination of criminal responsibility.” 106 U.S.App.D.C. at page 135, 270 F.2d at page 328.
I do not quarrel with the majority’s holding that Winn and Calloway do not require reversal where it appears that, notwithstanding the fact that the District Court orders an examination limited to trial competency, a more extensive *253 examination is in fact performed which is adequate for the purposes of determining criminal responsibility. 5 Of course we are interested in the substance and not the form. But it is painfully obvious that the substance of an adequate examination was lacking here. We said in Winn that “In addition to the psychological and neurological tests which may be indicated, that [a proper] determination [of criminal responsibility] requires adequate knowledge and a proper expert evaluation of the accused’s personal history and the circumstances surrounding the crime.” Dr. Ryan’s opinion was not buttressed by such information.
Dr. Ryan testified in the present case that he saw Jones for “approximately 45 minutes on October 15th * * * and again for about 40 minutes approximately two weeks after this time”; that on thi-ee or four other occasions he had “relatively brief contacts with him * * ”; and that he “perhaps * * * had more brief contacts.” Dr. Ryan’s testimony in the breaking and entering case (Appeal No. 15327) reveals that no psychological tests were conducted and no effort was made to obtain essential behavioral information from various institutions to which Jones had been committed, such as, the National Training School, Chilli-eothe Reformatory, Lorton Reformatory, and District of Columbia Jail. Nor were his Army medical records sought. No members of his family or former employers were interviewed although he advised Dr. Ryan that such persons were available in this area. Dr. Ryan sought to explain these omissions on the ground that:
“This was at a time when I was trying to establish routine evaluation by the social service department of every patient and also at a time when they were finding it utterly impossible to keep up with our turnover of approximately 50 patients a month.”
And later, when he was asked if he “would say that [his] examination of Mr. Jones was not superficial?” he replied :
“Yes. I would say it was not superficial in the sense that the key to the whole diagnosis here lay in the ability to follow certain nuances and feeling which I felt were very clearly evident in this, which I have described, this evaluation of whether or not he really felt that he had done something wrong.” 6 (Emphasis supplied.)
Thus it plainly appears that the examination actually conducted could not bring to light the matters which we carefully described in Carter v. United States, 1957, 102 U.S.App.D.C. 227 , 252 F.2d 608 , as essential for a proper consideration of the issue of responsibility. The need for such information is not obviated by the fact that Dr. Ryan, in the course of his rounds through the hospital wards, had the opportunity for fleeting glimpses of Jones up to the day of the alleged assault on November 15.
Jones also argues that, since Dr. Plat-kin testified that Jones was mentally ill at the time of the alleged offense, the Government had the burden of establishing beyond a reasonable doubt that he *254 was not suffering from such illness; and that in view of Dr. Ryan’s inadequate examination his testimony is insufficient to discharge that burden. He therefore urges that we direct the District Court to enter a judgment of acquittal by reason of insanity. Douglas v. United States, 1956, 99 U.S.App.D.C. 232 , 239 F.2d 52 ; see Isaac v. United States, - U.S.App.D.C. -, 284 F.2d 168 . This argument is not without substance. But the interests of the administration of criminal justice would be better served by adopting the course we followed in Winn and Calloway, namely, to order a new trial at which the issue of responsibility could be determined on the basis of “complete and thorough” examinations conducted for the purpose of illuminating that issue.
Accordingly, I dissent from the court’s action affirming the judgment below.
. Thus it appears that, although the psychiatrists at St. Elizabeths found Jones competent to stand trial — i. e., to understand the charges against him and to assist in his own defense — they agreed that he was nevertheless suffering from mental illness. See Lyles v. United States, 1957, 103 U.S.App.D.C. 22 , 254 F.2d 725 , certiorari denied 1958, 356 U.S. 961 , 78 S.Ct. 997 , 2 L.Ed.2d 1067 .
. Notwithstanding its sole reliance on Winn and Calloway in its motion to remand, the Government now asserts belatedly that it also had in mind “other serious questions.”
. After our mandate issued, the District Court again committed Jones to St. Elizabeths Hospital for a mental examination but this time it ordered the ex-animation, as required by our decisions, to include the issue of responsibility.
. Moreover, it is clear that Dr. Ryan’s two interviews with the appellant took place in mid and late October, and that he formed his opinion of Jones’ sanity at that time. Thus the basis for his opinion was obtained several weeks before the attack. (Dr. Ryan testified in No. 15327 that his further brief contacts did not contribute to his evaluation.) This is not as “concurrent” as the Government seems to suggest. The significance of this time lapse between Dr. Ryan’s diagnosis and the attack upon the attendant relates to Dr. Cody’s testimony in the breaking and entering case that appellant did not attempt to escape until it became apparent to him that he would receive no therapeutic assistance at the District of Columbia Jail.
. The majority goes on to say that Dr. Platkin’s examination was adequate for the purpose of determining Jones’ mental condition as of the date of the attack upon the hospital attendant. I fail to see how they can derive comfort from this fact, assuming it to be true. Dr. Platkin testified that Jones was mentally ill and that the acts for which he was indicted were the product of that illness. If the Government’s case is to stand up, it must appear that Dr. Ryan’s examination was adequate for the purposes for which it was used — to establish beyond a reasonable doubt that Jones was not suffering from mental illness at the time of the offense, or that if he was mentally ill, the crime was not the product of that illness.
. The inquiry described by the italicized portion of Dr. Ryan’s testimony appear? to have been the focus of his examination. In summarizing his testimony, Dr. Ryan said: “The key to my diagnosis is not in the actual details of the past history, but I will go back again to the point which you inquired about, as to whether he showed remorse.”