(dissenting).

[The following opinion was prepared for consideration of my associates but it did not meet with their approval. I adhere to my views as therein expressed.]

This is an appeal from an order denying a motion [made under Rule 32 (d) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.] to withdraw a plea of guilty and to vacate a judgment of conviction entered thereon. .At the hearing prior to arraignment and plea, appelknt represented by counsel waived indictment. Before the same court and represented by the same counsel, after arraignment upon information, he pleaded guilty to certain violations of the Internal Revenue Code. The motion which is the subject of appeal here was filed some eight months after the sentencing of appelknt, during the term of court following that in which appellant was sentenced, and was considered and ruled upon by the sentencing court.

Appelknt urges that his mental condition at the time of his plea of guilty rendered the plea incompetent. That such might be the case was brought to the attention of the district judge before appelknt pleaded. The arraignment was halted temporarily while the Court questioned appelknt, whereupon it was ruled that he understood the nature of the proceedings and the charges. After a short recess and consultation-by appelknt with his counsel, a plea of guilty was entered and accepted by the court.

*777 A high duty burdens the judiciary to save from encroachment the personal guaranties of the Constitution of the United States. Courts must be alert to notice and condemn infringements of constitutional rights. An accused, however, while accorded special favor, may waive his rights under the Constitution if he does so understandingly and voluntarily. 1 2*****Whether there is a proper waiver “should he clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, 304 U.S. 458, 465 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 , 146 A.L.R. 357 .

A plea of guilty by an accused is in effect a substitute for, and a waiver of, trial by jury, the right to which is constitutionally protected. U.S.C.A. Constitution, Amendment VI. One who so pleads may be bound thereby, but it is imperative that the chosen course of action be undertaken with full knowledge of the facts and probable consequences and preferably after legal advice. Kercheval v. United States, 274 U.S. 220 , 47 S.Ct. 582 , 71 L.Ed. 1009 ; Bergen v. United States, 8 Cir., 145 F.2d 181 . Once made, a plea of guilty cannot be withdrawn as a matter of right. An application to withdraw a plea of guilty is addressed to the sound discretion of the court. The exercise of discretion is reviewable only for abuse. 2 A mere showing of a denial is insufficient. A misapprehension of appellant’s rights, making it manifestly just and fair to give him the privilege to substitute pleas, would suffice.

An insane person has not the capacity to plead to an arraignment or to be tried. Youtsey v. United States, 6 Cir., 97 F. 937 ; Forthoffer v. Swope, 9 Cir., 103 F.2d 707 . The proper criterion to determine an accused’s mental capacity at the time of trial and sentence is “whether an accused has the mental capacity to comprehend his own condition with reference to the accusation pending against him and is capable of rationally conducting his defense.” Moss v. Hunter, 10 Cir., 167 F.2d 683, 685 . The so-called “right and wrong” test is not sufficiently inclusive. 3

Once the matter of competency is raised, the court must have an inquiry, the type of which is discretionary. A jury trial is not a matter of right. Inquiry by the court without the testimony of experts or other evidence, by which the court would not be bound in any event, is proper if the substantial rights of the accused are protected. Youtsey v. United States, 6 Cir., 97 F. 937 ; United States v. Harriman, D.C.S.D. N.Y., 4 F.Supp. 186 .

At the time of the arraignment here upon charges of income tax evasion, it was disclosed that appellant had been incarcerated in the Los Angeles County jail for some eighteen months immediately preceding and was about to be transferred to San Quentin following a state conviction for murder, *778 that while in the county jail he had been ill and depressed and had been placed in a padded cell for a period of time, an incident left unexplained, that counsel for appellant who had dealt with' him for two years complained to the court that he was not capable, due to mental deterioration, to assimilate legal advice. The statements of appellant’s counsel to the court strongly tend to show that their client apparently could fasten his whipped brain only upon his intense desire to leave the county jail. Upon questioning of appellant the court directed questions, not as to whether appellant would plead guilty or not guilty but as to his counsel’s advice upon the subject; not as to appellant’s consciousness of guilt but as, to whether his counsel’s advice as to his guilt should rule his pipa:

“THE DEFENDANT: * * * I talked to my attorneys and said whatever it is, I simply can’t stay where I am now. Whatever it is, I have got to get out; I can’t stay any longer, so I talked to him and said, ‘Whatever you think I ought to do, I will do it.’

“THE COURT: They are both very reputable attorneys, and so is the representative of the United States Attorney, and they don’t want you to plead guilty to ■the charge, regardless of what I may do in the case, unless you understand what it is all about.

“THE DEFENDANT: I can’t stand it another minute.” * * *

It should be remembered that the colloquy just quoted took place while the appellant was under the heaviest stresses which the court referred to as “ * * * the Lord knows are bad enough.” We are not convinced that the court’s interrogation of appellant sufficiently disclosed the requisite understanding on the part of the accused. 4 “There must be both the capac *779 ity to make an understanding choice and an absence of subverting factors so that the choice is clearly free and responsible.” Frankfurter, J., concurring in Von Moltke v. Gillies, 332 U.S. 708, 729 , 68 S.Ct. 316, 326 . The district judge futhermore denied the motion to withdraw the plea without a hearing. Compare Kuczynski v. United States, 7 Cir., 149 P.2d 478 .

To discharge the weighty responsibility placed upon him, “a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his” rights and desires to waive them “does not automatically end the judge’s responsibility.” Von Moltke v. Gillies, 332 U.S. 708, 723, 724 , 68 S.Ct. 316 .

The probable guilt of appellant is of no concern. The doubt we experience lies in whether his decision to plead guilty was competent under the circumstances. So-called “present insanity” is not a defense or excuse for crime, but merely impedes judicial process during its existence because the law will not enforce society’s due at a time when an accused is incapable of conducting his defense.

I would reverse and remand with instructions to set aside the sentence of the court together with the plea of guilty, and to enter the plea of not guilty.

Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 , 146 A.L.R. 357 ; Glasser v. United States, 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 ; Von Moltke v. Gillies, 332 U.S. 708 , 68 S.Ct. 316 , 92 L.Ed. 309 ; Neufield v. United States, 73 App.D.C. 174 , 118 F.2d 375 ; McCrea v. Jackson, 6 Cir., 148 F.2d 193 ; Wilfong v. Johnston, 9 Cir., 156 F.2d 507 ; Barkman v. Sanford, 5 Cir., 162 F.2d 592 ; United States ex rel. Adams v. Ragen, 7 Cir., 172 F.2d 693 .

Kercheval v. United States, 274 U.S. 220 , 47 S.Ct. 582 , 71 L.Ed. 1009 ; Camarota v. United States, 3 Cir., 2 F.2d 650 ; Fogus v. United States, 4 Cir., 34 F.2d 97 ; Ward v. United States, 6 Cir., 116 F.2d 135 ; United States v. Fox, 3 Cir., 130 F.2d 56 ; United States v. Colonna, 3 Cir., 142 F.2d 210 ; Rosensweig v. United States, 9 Cir., 144 F.2d 30 , certiorari denied 323 U.S. 764 , 65 S.Ct. 117 , 89 L.Ed. 612 ; United States v. Mignogna, 2 Cir., 157 F.2d 839 , certiorari denied, Mignogna v. United States, 330 U.S. 830 , 67 S.Ct. 863 , 91 L.Ed. 1278 ; United States v. Harris, 2 Cir., 160 F.2d 507 ; United States v. Lias, 4 Cir., 173 F.2d 685 .

Ashley v. Pescor, 8 Cir., 147 F.2d 318, 320 ; United States v. Chisolm, C.C.S.D. Ala., 149 F. 284 ; United States v. Harriman, D.C.S.D.N.Y., 4 F.Supp. 186 ; United States v. Boylen, D.C.Or., 41 F.Supp. 724 ; United States v. Chandler, D.C. Mass., 72 F.Supp. 230 , affirmed, Chandler v. United States, 1 Cir., 171 F.2d 921 ; United States v. Best, D.C.Mass., 73 F.Supp. 654 ; United States v. MacLeod, D.C.E.D.Pa., 83 F.Supp. 372 .

The following are relevant parts, of the questioning by the court:

“THE COURT: Do yon know what they brought you here for? ■

“THE DEFENDANT: I -understand I was arraigned on a tax matter. I paid my tax for 1946.

“THE COURT: The Government charges here that in 1944 you did not pay the full tax and-

“THE DEFENDANT: In 1946, while I was in the County Jail, I paid no tax.

“THE COURT: This was two years before that time.

“THE DEFENDANT: They did not tell me that.

“THE COURT: This was for 1944-1945.

.“THE DEFENDANT: They did not tell me that. I paid the tax1’ bill for 1946. ” * * *

“THE COURT: * * * Do you .know what a, plea, is in a criminal case?

“THE DEFENDANT: I would say, whether you are guilty or not.

“THE COURT: Do you know what the consequences would be if you would say that you were guilty? Suppose you say you are not guilty. Do you know what follows ?

“THE, DEFENDANT: If I, say guilty they will keep me another year in the County Jail.

“THE COURT: Xou understand, if you say you are guilty the Court can impose any sentence that the law- allows ? Xou understand that?

"THE DEFENDANT: I will take your word for it, your Honor.

“THE COURT: What we are trying to find out is if you understand what we are here for.

“THE DEFENDANT: My attorney told me.

“THE COURT: Tour attorney feels there is a little confusion in your mind, probably brought on by confinement. Of course work out of doors would make a great difference.” * * *

“THE DEFENDANT: * * * Whatever my attorneys say I will do. I will talk to him. If he says I should plead guilty-

“THE COURT: We want to find out if you are conscious of what is going on about you. * * *”

“THE COURT: * * * Before Mr. gtahlman advises you what to do, he wants to know if you understand what it is all about. Perhaps you can help him out. He does not want to advise you to plead guilty unless he is satisfied, not only on his own account that these facts are true, but that you realize that they are true.” * * *

“THE DEFENDANT: * * * X talked to my attorneys and said whatever it is, I simply can’t stay where I am now. Whatever it is, I have got to get out; I can’t stay any longer, so I talked to him and said, ‘Whatever you think I ought to do, I will do it.’

“THE COURT: They are both very reputable attorneys, and so is the repre *779 sentative of the United States Attorney, and they don’t want you to plead guilty to the charge, regardless of what I may do in the case, unless you understand what it is all about.

“THE DEPENDANT: I can’t stand it another minute.” * * *

“THE COURT: I am satisfied from the examination I have given him that he knows what this proceeding is about. I don’t claim to be a psychiatrist or to determine things from a neurological standpoint, but applying the test which we use in the federal court, we accept the test of competency as to one’s ability to distinguish between right and wrong. We also give recognition to modern psychology, but wo recognize that a person may know the difference between right and wrong and still act under a compulsion which he cannot resist. * * * I think on the basis of this examination, that he shows an awareness of his present environment, and his answers to my questions regarding the conditions in the jail, plus the general question as to the nature of the charge and the consequences, that regardless of any confusion in his mind brought about by his confinement and by brooding over his troubles, which the Lord knows are bad enough, that he understands the nature of the plea, and that I would be absolutely safe in accepting it, if after further consultation with his counsel, he desires to enter it.”

After a short recess during which apellant consulted with his counsel, arraignment took place, and appellant pleaded as follows:

“MR. STA HUMAN: * * * ‘I talked with the defendant, and before the pleas are entered, he wanted me to state whether he should plead or not. I told him that would have to be a matter of his own judgment. I went over certain facts with him, after talking with the federal attorney, and certain evidence that I had seen. We are ready to proceed.’ * * *

“THE CLERK: Samuel D. Collins, do you understand the nature of this charge?

“THE DEFENDANT: My attorney has told me.

“THE CLERK: Do you understand the nature of a plea of guilty?

“THE DEFENDANT: I do. That is all right.

“THE CLERK: Do you understand that should you enter a plea of guilty the Court, without further delay or trial, can impose any sentence warranted by the law? Do you understand that?

“THE DEFENDANT: Yes, I understand that. My attorney explained it to me.

“THE CLERK: Samuel D. Collins, how do you plead to Count I of this information?

“THE DEFENDANT: I plead guilty.

“THE CLERK: How do you plead to Count II of this information?

“THE DEFENDANT: Guilty.”