The only issue on appeal in this proceeding to revoke appellant’s probation is whether the District Court abused its discretion when, after holding a hearing under 18 U.S.C.A. § 4244, it found the appellant mentally competent to understand the proceedings against him and to assist his attorney in his defense. We have concluded that there was an abuse of discretion by the District Court and we reverse.
In 1966 appellant Gray pleaded guilty to charges of violating the Internal Revenue Laws pertaining to a still and nоn-tax-paid whiskey. He was given a sentence of six years, five years and nine months of which were suspended, and he was placed on five years’ probation.
In 1968 the Government filed a petition to revoke Gray’s probation on the ground that he was then operating a still with mash and had non-tax-paid whiskey on hand. He pleaded guilty to violating his probation. Upon Gray’s being questioned concerning the voluntariness of this plea, it appeared that he had previously been in a mental institution. On motion thе court ordered him examined by Dr. Waldron, a psychiatrist. Dr. Wal-dron’s written report stated that Gray was “suffering from a mental disease or disorder” known as “chronic brain syndrome”, and that he was presently insane. The report went on to say that it was Dr. Waldron’s “opinion that he [Gray] was presently unable to understand fully the proceedings against him and the consequences thereof, and that he is incompetent to assist in his own defense.”
After receiving this report in evidence the District Court ordered Gray committed tо the Medical Center for Federal Prisoners at Springfield, Missouri, for further psychiatric examination. The Psychiatric Staff there filed written findings on Gray’s mental condition and cоncluded that Gray was “not competent to stand trial.” Dr. Pasquale Ciccone, Director of the Medical Center, sent a letter to the District Court stating that the Staff’s “reрorted findings support an adjudication by the court that the subject is so mentally ill as to be unable to assist rationally in his defense or to have a rational understanding of the proceedings against him.”
In addition to this evidence Gray’s wife and brother testified that they thought something was wrong with Gray.
The Government’s evidence consisted of the testimony of five lay witnesses, four law enforcement officers and a United States probation officer. The Government’s brief accurately summarized the testimony of these witnеsses as follows:
The law enforcement officers all testified that on prior occasions when they had arrested and been around the appellant he hаd always acted in a normal and rational manner. The Probation Officer likewise testified that appellant appeared normal and rational on the оccasions when he had interviewed appellant and at the time he was preparing the pre-sentence report he had received some five оr six letters from citizens in the appellant’s community attesting to his being a good citizen but none suggested any mental problem.
The trial court found that Gray was mentally comрetent, revoked his probation, and imposed a five year sentence.
The test of mental competency under 18 U.S.C.A. § 4244 is whether a defendant has sufficient presеnt ability to consult with his attorney with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proсeedings against him. Dusky v. United States, 1960,
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It is true that expert opinion on competency is not binding on the trier of facts.
Ibid.
But it is also true that “ 'while a lay witness’s observation of abnormal acts by an accused may be of great value as evidence,
a statement that the witness never observed an abnormal act on the part оf the accused is of value if, but only if, the witness had prolonged and intimate contact with the accused.’ ”
Wright v. United States, 1957,
The relative weight of uninformed lay opinion and expert оpinion was also considered in Fielding v. United States, 1957,
All of the lay tеstimony offered by the Government taken together was not sufficiently probative, in the face of the strong showing of insanity made by the defense, to permit reasonablе jurymen to conclude beyond a reasonable doubt that appellant was sane at the time of the shooting. What we have said elsewhere about an oрinion of sanity expressed by an untrained lay witness having no prolonged and intimate contact with the accused [citing Wright v. United States, su pra] disposes of the testimony of thе policemen in this case. The conclusions of normalcy and soundness of mind expressed by appellant’s brother and wife, stand not much higher than those of the pоlicemen. Both were out of touch with appellant for a considerable time until just before the shooting and neither professed to have any training or experience in the judgment of sanity. Id. at 880.
We are not here concerned with precisely the same standard involved in Wright and Fielding, supra, viz., whether the evidence was sufficient for reasonable jurymen to find that the defendant was sane at the time of the commission of the crime. Here we are concerned only with whether or not the finding of competenсy at the time of pleading guilty to the probation violation is clearly arbitrary or unwarranted. It may be that in a particular case, because of the fact thаt the standards are different in the determination of the sufficiency of evidence when insanity is raised as a defense and the determination of competency tо stand trial, that the quantum of the Government’s evidence of sanity at the time of the crime would not be sufficient to get the question to the jury, while a judge would be warranted on thе same quantum of evidence in resolving the issue of competency to stand trial in favor of the Government. Nevertheless, we find Wright and Fielding persuasive for their teachings on the comparative qualitative value to be given evidence on incompetency which is submitted by expert witnesses oh the one hand and that which is submitted by lay witnesses who have had little contact with the accused on the other.
In this case the expert testimony was unanimous that Gray was incompetent. None of the examining doctors was called to testify at the hearing; therefore, the expert testimony was unimpeached. Some of the lay testimony was also to the effect that Gray wаs incompetent. The only evidence to the contrary came from laymen, all of whom testified, in effect, to nothing more than that they had never observed an abnormal act on the part of Gray, and none of whom had any “prolonged and intimate contact with the accused.” Wright v. United States, supra. Their testimony is insufficient to establish Grаy’s competency in the face of unimpeached ex *319 pert testimony to the contrary. 1 It thus appears that on this record the District Court was not warranted in concluding that Gray was competent to understand the nature of the proceedings against him and to assist in his own defense.
An abuse of discretion having been found, the judgment is reversed.
Reversed and remandеd for further proceedings not inconsistent with this opinion.
Notes
. We reject the Government’s contention that the expert opinions in this case are of as little value as the lay opinion because the reports containing these opinions contained little of any substantial facts upon which the opinions were based. Even if the reports were deficient in this respect the Government was not denied the opportunity to call the examining doctors as witnesses and cross examine them concerning the reports. We will not penalize Gray for a deficiency which was within the prosecution’s capacity to remedy. See Wright v. United States, supra at p. 9 of 250 F.2d.