and his welfare require. The Court points out that, although this fact has no theoretical bearing on the jury's verdict, it may have a practical bearing.
Defendant now asserts that this opinion handed down after the trial and verdict in his case gives rise to a substantial question, but he does not rely on the admission in evidence of testimony by psychiatrists at Saint Elizabeth's Hospital, because, as I recall it, there was no psychiatrist called by the government who would now fall within the interdiction of this opinion. Nor does he claim error in the admission in evidence of the finding of competency, nor do I see how he properly could, because he offered it himself and it was part of his defense. He had previously offered in evidence an earlier finding of incompetency in support of his defense of insanity at the time of the commission of the offense. Apparently he felt that the jury should know that he had been restored to competency since the earlier finding, as otherwise the jury would be in the dark as to how he could properly be tried, with only a finding of incompetency before them. As stated, his defense was insanity at the time of the offense. If that had been established, it would have resulted in a verdict of not guilty by reason of insanity, and defendant would have been absolved from criminal responsibility and entitled to release from custody if then of sound mind. It would seem that, when the authorities at Saint Elizabeth's Hospital certify that a defendant is competent to stand trial, with the ever-present possibility of a straight not-guilty verdict entitling defendant to immediate release, they implicitly certify that his mental condition is such as to justify his release. Of course, they could change their opinion on this question, upon a verdict of not guilty by reason of insanity and in view of the presumption flowing therefrom; but this would appear to be the only basis for their continued detention of a defendant so situated, and they would be required to sustain their changed opinion in court if defendant sought his release by habeas corpus claiming to be of sound mind.
Defendant relies mainly on the third point referred to in the opinion in the Taylor case, supra, and contends that a substantial question arises from it by reason of the fact that, though I told the jury that I would commit the defendant to a mental institution if he were found not guilty by reason of insanity, which instruction would almost appear to be prevision of the appellate court's later ruling, I added, if the institution adhered to its last opinion as to defendant's soundness of mind, he would be released very shortly. This latter is now objected to, apparently on the ground that, though it is not frowned on by the Court of Appeals, neither is it sanctioned by it. As a practical matter, to use that Court's language, if the jury should be told that defendant would be committed to a mental institution if found not guilty by reason of insanity, it is incomprehensible to me that it should not also see the other side of the coin and be told that he would be released very shortly if the institution adhered to its expressed opinion as to his mental condition. In my judgment, if the jury is entitled to know one fact, it is entitled to know the other. I see no justification for giving the jury a half truth.
But I should add that I further told the jury, if their verdict was not guilty by reason of insanity, defendant would remain at Saint Elizabeth's unless and until it was determined by the authorities of that hospital that he was of sound mind; and at the request of defendant, after the charge had been concluded, I still further told the jury that his release would depend upon his mental condition, or what the authorities found his mental condition to be, if he was returned to Saint Elizabeth's Hospital, and defense counsel stated that this was sufficient.
For these reasons, I find no substantial question in the point principally urged for granting the motion, nor in the other points briefly mentioned in argument, which do not merit discussion. Accordingly, I certify that the appeal is not taken in good faith, and deny the motion to allow defendant to proceed in forma pauperis and to enlarge him on bail pending appeal. For me to do otherwise, to my mind, would make a mockery of the criminal law and bring its administration into disrepute.