*1 PER CURIAM. as matter District Court declined power to en- of discretion exercise its

join proceeding Municipal Court. compelled We think court was not injunction, find

law to issue the

no abuse of discretion.

Affirmed. Washing- Angland, appellant, Mr. S. J.

ton, C., pro se. D. Washing- Jr., Murphy, J.

Mr. Walter ton, C., with Mason whom Messrs. H. Barse, Harry Welch, Welch, Joseph J. Welch, Arthur Washington, Butler James V. A. briefs, ANGLAND, Appellant, S. J. v. Mr. Justice University Club, al., John DOE et Edgerton Appellees. udges. J 15206, 15413. Nos. Appeals States Court of Columbia Circuit. District of parties principal between issue 2,1960. Argued March and dis was considered posed 17, 1960. DecidedMarch Angland Doe.1 Subse of in v.

quently appellant moved further with adverse results perceive complains.2 now We upon disturb no basis which we should the action taken the District Court. MOORE, R. Theodore America, STATES of UNITED Respondent. Misc. No. 1309. Court of District of Columbia Circuit. 1960. present appeals Sitting by designation consolidated §to We argument. briefing purpose (a), Title 28 *2 petitioner’s leave motion government appeal expense was de- at by There- nied division this court. through petitioner after his counsel of his en banc moved for reconsideration petition peti- pauperis. This in forma rehearing tion banc was denied. having on behalf statement filed been thought of members the court who petition explana- granted, tion seems indicated. minority statement indicates that Washington Bazelon, Circuit and government

Judges, dissented. expense should be allowed order consider was error whether it for the trial court to refuse to based on intelligence had rating by or score 69 as shown tests when he was in school and when was military admitted into service. dissenting In essence the view is that allow to consider “insanity” whether the instruction de States, 94 fined in Durham v. United App.D.C. U.S. (1954), A.L.R.2d should be extend defendants as morons ed to classified scoring psychological tests subject as less than This court has several cases heard closely banc in which the related so-called responsibility” “diminished rule has urged upon in no us and case until recently has even commented so advanced. Cf. Blocker v. U.S. App.D.C. 63, 274 F.2d 572. Our recent opinion in Stewart v. United Karr, Washington, John W. Mr. petitioner. petition for was on the concept reject 617, makes clear that ed. Atty., and Carl The issue be raised Kaplan, M. Asst. U. Louis dissenting opinion totally outside of filed, the answer was time beyond any the rule enunciated in respondent. the answer by case decided court. psy is well established that Chief Prettyman, psychologists freely chiatrists con Miller, Bazelon, Edgerton, Wilbur K. accuracy is no there cede reliability absolute Washington, Fahy, Bastian Judges. tests for the measurement Burger, *** men- is no No used intelligence.1 as are tests Such eyes His. law. absolutes, guides, not are treated men- psychologist’s] definition of [the persons of responsible experts. Two *3 altogether from different capacity was substantially mental the same a defense of insan- what we consider as materially scores different test with ity.” of the The trial court’s evaluation tests, depend- ratings or in his state- in education, Rorschach is reflected ing of their on the extent jury im- not “was ment to the that he back- training, environmental their in pressed ink blots introduced the with ground The evidence factors. other psychologist.” the per- evidence a appellant not in is this ease shows suffering “disease” a son from either testify professional witness did defined has or a “defect” as opinion petitioner “not was in his that those terms. mentally appears have ill.” But this solely that rested on his belief Judge, WASHINGTON, with Circuit psychotic, matter and that as a was not joins BAZELON, whom Circuit only psychosis “mental constitutes of law (dissenting). apparent trial is the illness.” It in course, leave to this court shared view. Of for pauperis conviction from his forma United view is erroneous. Carter v. second-degree panel the A of U.S.App.D.C. murder. dissenting. judge leave, court one denied F.2d 608. banc, Petitioner asked reconsideration United It is true that in Stewart erroneously, and this has denied — 159, 275 States, 1960, U.S.App.D.C. I think. rejected 617, 624, “the question present is least one the trial was error for that it is not here our review give requested ed for in- court to decline the namely, plainly the whether diminished that evidence of frivolous — struction refusing requested in a trial court erred permit-the jury to return intellect would of degree defense instruction the of homicide of a lesser a verdict long some degree as there was “[S]o But than first murder.” here [insanity], issue of relevant to the requested of instruction was a different credibility such evidence possi- and force of in relation to a it was asked sort: jury, cannot be mat guilty by must be for in- of not reason ble verdict the court.” possible for the decision of ter law sanity, in relation to a not App. guilty Kinard v. than of a lesser offense verdict 522, 526, quot as degree question D.C. in- murder. The second States, 1951, 88 in Tatum v. United quite ed thus in this case is distinct volved in from involved Stewart. Is the one difficulty.1 question a not without While testifying psychologist for the de- stage necessary at this to ex- not I.Q. petitioner had an fense stated question press how rais- a view to placed him and that “in decided, pe- ed defectiveness”; range that his mental day his in this court. titioner I.Q. rated as 69 when he had also been again for en consider- I therefore vote banc when he was attended school and case, forces; of the merits of the but. ation —not of the armed and that a member regard ap- you may for purposes, of the allowance of the practical “for pauperis. allowed, rejecting peal If in forma In a moron.” re- him as instruction, judge would come normal course quest the trial hearing by panel. for in this case. “There no said: judge Apparently Psychiatry Weihofen, least one & Guttmacher granted (1952). an Court has The Law requested to the one de- similar —and Geisler, Washington, FAHY, Mr. Andrew L. EDGERTON Judge C., appellant. agree Though with Judges: case position, Washington’s basic Spangenburg, Asst. U. Miss Doris H. re- appropriate for to us seem not does Atty., with whom banc. consideration Atty., and Carl brief, Asst. U. S. Paulson, appellees. Mr. Nathan appearance entered also *4 Before Mr. Justice Judg and Bazelon Bastían, BERLOFF, Appellant Daniel es. WHITTIER, Administrator G. Sumner Affairs, al., Appellees. et Veterans No. 15031. appeal from an order of the This anis granting (ap- defendants’ District Court of Columbia summary judgment pellees’) motion for 7, Argued April dismissing complaint in a suit employ- service to civil for restoration Decided discloses no record denial of ment. The procedural rights. designation Sitting to 28 Smith v. United nied —here. See 294(a). § 169 at page (fn. of dissent- ing opinion).