DANAHER, Circuit Judge.
Appellant was indicted for robbery, alleged to have occurred on or about December 3, 1954. Upon arraignment on-April 1, 1955, a plea of not guilty was-entered. On July 1, 1955, it was determined judicially that appellant was not competent to stand trial, whereupon he-was committed to St. Elizabeth’s Hospital. On May 3, 1956, it was certified' that he was then competent to standi trial. Trial commenced on June 5, 1956, and the jury, rejecting a defense based' upon insanity at the time of the robbery, returned a verdict of guilty. His appeal charges that the trial judge erred [923]*923in refusing to direct a verdict of not guilty by reason of insanity, and, despite the absence of a request, in failing to instruct the jury on the legal meaning of “causal connection” between the state of mind of the appellant and the robbery itself.
A psychiatrist testified that he examined the appellant on May 27, 1955, June 13, 1955, and June 27, 1955. He then concluded that appellant was suffering from dementia praecox paranoid type, and that this condition had existed for a period of two to three years which would have included the date of December 3, 1954. He based his opinion upon a history of delusions and hallucinations, as narrated to him by the appellant. On cross examination the witness explained that “his mind was not completely out. A psychotic’s mind, a psychotic person can still do certain things.” Asked specifically whether or not the crime of robbery, as charged, was a product of the mental disease he answered, “Now that I am not able to give you any certain degree of any answer with any certainty. I am not sure whether it was * * * I am not sure whether the crime which he committed was a product of his mental disease.” The witness had made no check until the day of trial to ascertain with what crime the appellant had been charged. The same doctor explained that “An unlawful act which is committed by a psychotic person is not necessarily a product of his mental condition.”
The trial judge asked: “As I understand the question * * * you have been unable to state that the robbery with which this man is charged is a product of such condition as you found him to have?”
The witness: “Not with any degree of certainty, your Honor. I could only say that I am inclined to agree that the unlawful act which he committed was the result of his mental condition.” He added that such was his opinion because the psychosis was far advanced.
Further questioning developed the answer : “You see, there are certain things that a psychotic person can do. He still knows where he is. He is still able to travel. He is still able to go to a restaurant and eat his meals. A psychotic person can do a great many things although they are psychotic * * * he could not tell me what he had done. He was unable to tell me what he did.”
The witness had no information concerning symptoms except as the appellant told him about them. He made no check through any other sources, and “my conclusions were based only upon what I found during my examination.”
The doctor testified that even if he had checked with the man’s family and found that he had a work record from 1950 until the time of the examination, his opinion would not be affected for “many psychotic persons have a very good work record.”
Testimony was offered by the appellant’s wife and by his brother-in-law concerning abnormal conduct of the appellant, but it was brought out through appellant’s wife that from the time of the marriage in 1950, appellant had been steadily employed as a roofer and an electrical worker. Two police officers testified that they observed no abnormality in the speech or the conduct of the appellant.
A woman clerk at Aristo Cleaners detailed events at the time of the robbery. She testified that just prior to her closing the store at 7:30 P.M. on December 3, 1954, the appellant entered. She continued :
“He walked over to the counter to the corner of the cash register and he had his right hand in his topcoat pocket and in the other hand he had a paper bag. He stuck it around the corner of the register. He said Tut it in there,’ and I hesitated for a minute or so * * *. ******
“and he said ‘go ahead and put it in there’ and I started to put the money in the bag, right down to the pennies. He said ‘Never mind the pennies but give me what you got underneath.’ That was what [924]*924I had started to take out and laid under the counter when he opened the door and came in. ******
“After I put the money in the bag he said ‘Now go back in the back and stay there five minutes and don’t touch that telephone.’ He started back over and opened the door, and he pulled a handkerchief out of his pocket and wiped the door knob and down the side, both sides of the door, and went out. We had a large plate glass window on the side. He went down along the side of the window and he was still watching me, and I had never moved from in front of that register.”
The jury might readily conclude, upon all of the evidence, that the accused was not insane at the time of the crime. “The conflict was submitted to the jury under instructions which in this regard are not questioned, and which included one that the burden was on the Government to prove beyond a reasonable doubt that the appellant was of sound mind at the time of the killing.”1
The charge contemplated by the Durham case2 does not change the functions of the judge and jury in criminal cases where “insanity” is relied upon as a defense. The Durham rule does not alter the law governing the direction of verdicts by the court. To remove a case from the jury’s consideration, the judge must be able to say that reasonable men must necessarily possess a reasonable doubt as to the defendant’s sanity,3 i.e., that they could not reasonably reach any conclusion except that the prosecution has failed to sustain its burden of proving beyond reasonable doubt that the accused “was capable in law of committing crime.”4 If, upon all the evidence, such is the posture of the case, the accused is entitled to an acquittal of the specific crime charged.5 Conversely, the case must go to the jury if the prosecution has shown (1) that no mental disease or defect exists, or (2) that the act was not the product of an existing mental disease or defect.6
Considering the testimony of the lay witnesses and the qualified if not equivocal nature of the psychiatric testimony, and allowing proper play to the right of the jury to draw justifiable inferences therefrom, we believe the jury could properly have concluded beyond a reasonable doubt that the act was not the product of an existing mental derangement. We need go no farther. The fact that a jury might have found the existence of such a doubt does not justify the court’s directing an acquittal by reason of insanity. The issue here was properly left for the jury’s determination, and we cannot say its conclusion was not a permissible choice in light of all the evidence.
As to the remaining ground upon which this appeal was based, the trial judge instructed in pertinent part:
“The law does not hold a person criminally responsible if he is mentally deranged and his derangement causes him to commit a crime.
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DANAHER, Circuit Judge.
Appellant was indicted for robbery, alleged to have occurred on or about December 3, 1954. Upon arraignment on-April 1, 1955, a plea of not guilty was-entered. On July 1, 1955, it was determined judicially that appellant was not competent to stand trial, whereupon he-was committed to St. Elizabeth’s Hospital. On May 3, 1956, it was certified' that he was then competent to standi trial. Trial commenced on June 5, 1956, and the jury, rejecting a defense based' upon insanity at the time of the robbery, returned a verdict of guilty. His appeal charges that the trial judge erred [923]*923in refusing to direct a verdict of not guilty by reason of insanity, and, despite the absence of a request, in failing to instruct the jury on the legal meaning of “causal connection” between the state of mind of the appellant and the robbery itself.
A psychiatrist testified that he examined the appellant on May 27, 1955, June 13, 1955, and June 27, 1955. He then concluded that appellant was suffering from dementia praecox paranoid type, and that this condition had existed for a period of two to three years which would have included the date of December 3, 1954. He based his opinion upon a history of delusions and hallucinations, as narrated to him by the appellant. On cross examination the witness explained that “his mind was not completely out. A psychotic’s mind, a psychotic person can still do certain things.” Asked specifically whether or not the crime of robbery, as charged, was a product of the mental disease he answered, “Now that I am not able to give you any certain degree of any answer with any certainty. I am not sure whether it was * * * I am not sure whether the crime which he committed was a product of his mental disease.” The witness had made no check until the day of trial to ascertain with what crime the appellant had been charged. The same doctor explained that “An unlawful act which is committed by a psychotic person is not necessarily a product of his mental condition.”
The trial judge asked: “As I understand the question * * * you have been unable to state that the robbery with which this man is charged is a product of such condition as you found him to have?”
The witness: “Not with any degree of certainty, your Honor. I could only say that I am inclined to agree that the unlawful act which he committed was the result of his mental condition.” He added that such was his opinion because the psychosis was far advanced.
Further questioning developed the answer : “You see, there are certain things that a psychotic person can do. He still knows where he is. He is still able to travel. He is still able to go to a restaurant and eat his meals. A psychotic person can do a great many things although they are psychotic * * * he could not tell me what he had done. He was unable to tell me what he did.”
The witness had no information concerning symptoms except as the appellant told him about them. He made no check through any other sources, and “my conclusions were based only upon what I found during my examination.”
The doctor testified that even if he had checked with the man’s family and found that he had a work record from 1950 until the time of the examination, his opinion would not be affected for “many psychotic persons have a very good work record.”
Testimony was offered by the appellant’s wife and by his brother-in-law concerning abnormal conduct of the appellant, but it was brought out through appellant’s wife that from the time of the marriage in 1950, appellant had been steadily employed as a roofer and an electrical worker. Two police officers testified that they observed no abnormality in the speech or the conduct of the appellant.
A woman clerk at Aristo Cleaners detailed events at the time of the robbery. She testified that just prior to her closing the store at 7:30 P.M. on December 3, 1954, the appellant entered. She continued :
“He walked over to the counter to the corner of the cash register and he had his right hand in his topcoat pocket and in the other hand he had a paper bag. He stuck it around the corner of the register. He said Tut it in there,’ and I hesitated for a minute or so * * *. ******
“and he said ‘go ahead and put it in there’ and I started to put the money in the bag, right down to the pennies. He said ‘Never mind the pennies but give me what you got underneath.’ That was what [924]*924I had started to take out and laid under the counter when he opened the door and came in. ******
“After I put the money in the bag he said ‘Now go back in the back and stay there five minutes and don’t touch that telephone.’ He started back over and opened the door, and he pulled a handkerchief out of his pocket and wiped the door knob and down the side, both sides of the door, and went out. We had a large plate glass window on the side. He went down along the side of the window and he was still watching me, and I had never moved from in front of that register.”
The jury might readily conclude, upon all of the evidence, that the accused was not insane at the time of the crime. “The conflict was submitted to the jury under instructions which in this regard are not questioned, and which included one that the burden was on the Government to prove beyond a reasonable doubt that the appellant was of sound mind at the time of the killing.”1
The charge contemplated by the Durham case2 does not change the functions of the judge and jury in criminal cases where “insanity” is relied upon as a defense. The Durham rule does not alter the law governing the direction of verdicts by the court. To remove a case from the jury’s consideration, the judge must be able to say that reasonable men must necessarily possess a reasonable doubt as to the defendant’s sanity,3 i.e., that they could not reasonably reach any conclusion except that the prosecution has failed to sustain its burden of proving beyond reasonable doubt that the accused “was capable in law of committing crime.”4 If, upon all the evidence, such is the posture of the case, the accused is entitled to an acquittal of the specific crime charged.5 Conversely, the case must go to the jury if the prosecution has shown (1) that no mental disease or defect exists, or (2) that the act was not the product of an existing mental disease or defect.6
Considering the testimony of the lay witnesses and the qualified if not equivocal nature of the psychiatric testimony, and allowing proper play to the right of the jury to draw justifiable inferences therefrom, we believe the jury could properly have concluded beyond a reasonable doubt that the act was not the product of an existing mental derangement. We need go no farther. The fact that a jury might have found the existence of such a doubt does not justify the court’s directing an acquittal by reason of insanity. The issue here was properly left for the jury’s determination, and we cannot say its conclusion was not a permissible choice in light of all the evidence.
As to the remaining ground upon which this appeal was based, the trial judge instructed in pertinent part:
“The law does not hold a person criminally responsible if he is mentally deranged and his derangement causes him to commit a crime. But it is not every kind of mental derangement or mental deficiency which is sufficient to relieve a person of responsibility for his acts. * * * In order for a person to be held not guilty of a crime by reason of insanity, there are two requirements :
[925]*925“1) He must have suffered a mental defect, or mental disease at the time of the offense, in this case, as of December 3, 1954, and
“2) His act must have been the product of that mental defect or disease.
* * * * *
“As to the second requirement, that the criminal act was the product of the mental abnormality, this simply means that the act committed must have resulted from or been produced or caused by the mental disease or mental defect suffered by the defendant. Thus, your task would not be completed upon a finding, if you so find, that the accused suffered a mental disease or defect at the time of the robbery. He would still be criminally responsible for his unlawful act, unless you should find further that there was a causal connection between his mental abnormality and the act with which he is charged. But if you should find both, that the defendant at the time of the robbery was suffering from some mental abnormality and that this abnormality caused his act, then you would find the defendant not guilty by reason of insanity.”
Apart from a lack of conviction that the trial judge erred, we find it unnecessary so to decide. Not only had there been no special requests to charge in a particular way, no exception was taken to the charge as given. Indeed, when counsel was asked if there was anything to add he replied “I am satisfied, your Honor.”7
One of our colleagues asked that supplemental memoranda be submitted by respective counsel as to a matter not raised on appeal. The trial judge asked the psychiatrist his opinion as to the appellant’s mental condition on the day of the trial. The answer was “I believe he is of sound mind.”
There has been some suggestion that it was improper under 18 U.S.C. § 4244 for the trial judge to ask such a question and to bring out the reply. We of the majority have considered this point and have concluded that there was no error. The doctor had relied solely upon his conversations with the appellant in May and June 1955, for a conclusion that the appellant had been of unsound mind on December 3, 1954. Accepting the appellant’s description of his delusions, the witness had said that the appellant had been of unsound mind for some two or three years. Yet, by June 1956, without further examination, he was willing to venture the opinion that the appellant then was of sound mind. It was within the discretion of the trial judge, especially in the light of the testimony as a whole, that he undertake either to clear up the conflict or, if possible, to resolve inconsistencies.
Our colleague further asked that counsel submit in their memoranda discussion of another point not raised on appeal, touching upon possible error in the charge. The trial judge said in part: “If your verdict is not guilty by reason of insanity, the Court will make an order for the defendant’s confinement in a mental hospital, where he will remain until it is judicially determined he is of sound mind, at which time he will be released.” The point is made that the judge did not add that the statute8 requires more than a judicial determina[926]*926tion of “sound mind”; and therefore that the judge should have told the jury that release requires a finding that “such person has [not only] recovered his sanity [but] that such person will not in the reasonable future be dangerous to himself or others * *
Undoubtedly the trial judge recognized that the statutory criteria must be satisfied before it may be “judicially determined” that such a person as appellant is eligible for release. It is arguable that the instruction as given failed to spell out all details. Since no request was made for enlargement of the instruction, we are not required to consider the alleged error.9 While plain error or defects affecting substantial rights may be noticed although not brought to the attention of the court,10 we do not feel that the circumstances of the present case compel the exercise of our discretion to that end.
His complete guilt otherwise having been established, we are satisfied that there was no error.
Affirmed.