James D. Hopkins, J.
The issue in this habeas corpus proceeding is whether the relator, now an inmate of Matteawan State Hospital by commitment of the Supreme Court, County of Niagara, dated September 21, 1950, is presently capable of understanding the criminal charge lodged against him, and of conferring with his counsel and making his defense.
The relator was indicted by the May, 1950 Grand Jury of Niagara County for the crime of murder in the first degree. He was accused of causing the death of one Lillian Bordeau on or about April 4, 1950 by asphyxiation through hanging. The [723]*723victim’s body was found on the sidewalk near a house in Niagara Falls, which she and her husband occupied. A short piece of rope was around her neck; the other end was attached to the knob of the back door of the second-story porch. The doors of the victim’s house were locked, but were not of the self-locking variety; no key was found on Mrs. Bordeau’s body. Investigation revealed that her husband, a fireman, had been working during the hours in which the Medical Examiner stated that the death must have occurred. A television set was missing from the house; Mr. Bordeau stated that on the night previous to the discovery of the body, he had talked to his wife on the telephone at about 11:00 p.m. and that she had said that she was watching a television program.
In April, 1950 the relator was also a fireman. He was friendly with both Mr. and Mrs. Bordeau. Apparently suspicion fell upon him, and he was traced to a home of a friend in Rochester. There the television set was found, and the relator admitted that he had given it to the daughter of the friend. A search of his clothing produced a key to the Bordeau house. The relator said that Mr. Bordeau had borrowed money from him, and that on the night before the discovery of the body, he had gone to the Bordeau home and taken the television set and other furniture in satisfaction of the debt, in accordance with an understanding with Mr. Bordeau. The relator also said that Mrs. Bordeau had given him the key to the house some time prior to this incident, and that she had done so apparently because she was infatuated with him, but that he had never accepted her advances.
Following his indictment, the relator was examined through an order of the court by two psychiatrists, who reported that he was suffering from dementia prsecox, paranoid type, and was in such a state of insanity, idiocy, or imbecility as to be unable to understand the nature of the charge pending against him and to make his defense thereto. He was consequently committed to Matteawan State Hospital, apparently without opposition by his counsel.
This is not the first proceeding instituted by the relator for the relief which he now seeks. His petition avers that four other applications have been previously made to this court.1 In none was he successful. Nevertheless, the ban of res judicata cannot operate to preclude the present proceeding, because obviously the mental condition of a person may improve at any time [724]*724(Weihofen, Mental Disorder As a Criminal Defense [1954], p. 383; People ex rel. Thaw v. Lamb, 118 N. Y. S. 389).2 The relator has the burden of proof, however, to demonstrate that he is no longer incapable of understanding the charge against him, and making his defense (People ex rel. Fazio v. McNeill, 4 A D 2d 686).
In the present proceeding testimony was received on behalf of both the relator and the respondent. For the first time the relator was supported by representation of retained counsel, and by the testimony of a qualified psychiatrist, Doctor George S. Cattanach. Doctor Cattanach testified that he had examined the relator on March 26, 1961, and had read the hospital records. It was his unshaken belief that the relator was able to understand the nature of the charge against him and to make his defense. The relator’s attorney testified that he had conferred with the relator, and had received information upon which he had based the petition in this proceeding. The relator testified at length under direct and cross-examination concerning the events of the night before the discovery of the body, and Ms subsequent movements. He said that he had gone to the Bordean home at about 9:30 p.m. of that evening in an automobile driven by a friend, and that this friend had seen him leave the Bordean home and bid good-bye to Mrs. Bordean. He would not, however, divulge the name of the witness, saying that he preferred to keep her anonymous until the trial of the murder charge.
The respondent produced two psychiatrists on the staff of Matteawan State Hospital who testified that from their observation of the relator during several recent interviews, his history, and the hospital records, it was their diagnosis that the relator was afflicted with schizophrenia, paranoid type, and was incapable of understanding the charge against him, and making his defense. They testified that the relator was suspicious and hostile; that he believed that his indictment and commitment were brought about by a conspiracy between the then District Attorney and other law enforcement officers, as well as a group in the Fire Department who were prejudiced against him; and that his present explanation of his movements on the days before and after Mrs. Bordean’s death was bizarre, inconsistent and in part delusional.
[725]*725The test of mental capacity which the law imposes upon a person accused of crime to determine whether he is capable of standing trial may be simply stated: Does the accused have possession of such mental faculties as to be able to understand the nature of the charge or of making his defensef3 (See Penal Law, § 1120; Code Crim. Pro., § 662-b). That test differs considerably from the test prescribed for legal responsibility for the crime charged,4 and from the test prescribed for the capacity to be punished, after conviction,5 and from the test prescribed for disposition of the accused after acquittal.6 [726]*726Despite the simplicity of statement,7 the operation of the test is difficult and places a serious and heavy burden on the court, where, as here, it is faced with conflicting opinions as to mental capacity by reputable psychiatrists (cf. People v. Wolfe, 198 Misc. 695; People ex rel. Bernstein v. McNeill, 48 N. Y. S. 2d 764; People ex rel. Thaw v. Lamb, 118 N. Y. S. 389). Although expert testimony is vital and greatly aids the court, the ultimate responsibility of decision lies with the court (People v. Wolfe, supra, p. 700; People v. Greene, 203 Misc. 191).
In any case where mental disorder is the issue to be decided, .a perplexing and confusing perspective is presented to the court. All physical illness when it is an element of proof must be established by proper medical testimony, and the trier of the facts may at times be compelled to choose between varying opinions. The process may indeed be difficult, but usually there are some objective signs by which the nature and extent of the illness may be distinguished. In the realm of the mind, however, the boundaries and features of the nature and extent of the disorder are more diffuse and dimly perceived. By the same degree of uncertainty the court frequently finds the issue of mental disorder to be clouded and less sharply defined.
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James D. Hopkins, J.
The issue in this habeas corpus proceeding is whether the relator, now an inmate of Matteawan State Hospital by commitment of the Supreme Court, County of Niagara, dated September 21, 1950, is presently capable of understanding the criminal charge lodged against him, and of conferring with his counsel and making his defense.
The relator was indicted by the May, 1950 Grand Jury of Niagara County for the crime of murder in the first degree. He was accused of causing the death of one Lillian Bordeau on or about April 4, 1950 by asphyxiation through hanging. The [723]*723victim’s body was found on the sidewalk near a house in Niagara Falls, which she and her husband occupied. A short piece of rope was around her neck; the other end was attached to the knob of the back door of the second-story porch. The doors of the victim’s house were locked, but were not of the self-locking variety; no key was found on Mrs. Bordeau’s body. Investigation revealed that her husband, a fireman, had been working during the hours in which the Medical Examiner stated that the death must have occurred. A television set was missing from the house; Mr. Bordeau stated that on the night previous to the discovery of the body, he had talked to his wife on the telephone at about 11:00 p.m. and that she had said that she was watching a television program.
In April, 1950 the relator was also a fireman. He was friendly with both Mr. and Mrs. Bordeau. Apparently suspicion fell upon him, and he was traced to a home of a friend in Rochester. There the television set was found, and the relator admitted that he had given it to the daughter of the friend. A search of his clothing produced a key to the Bordeau house. The relator said that Mr. Bordeau had borrowed money from him, and that on the night before the discovery of the body, he had gone to the Bordeau home and taken the television set and other furniture in satisfaction of the debt, in accordance with an understanding with Mr. Bordeau. The relator also said that Mrs. Bordeau had given him the key to the house some time prior to this incident, and that she had done so apparently because she was infatuated with him, but that he had never accepted her advances.
Following his indictment, the relator was examined through an order of the court by two psychiatrists, who reported that he was suffering from dementia prsecox, paranoid type, and was in such a state of insanity, idiocy, or imbecility as to be unable to understand the nature of the charge pending against him and to make his defense thereto. He was consequently committed to Matteawan State Hospital, apparently without opposition by his counsel.
This is not the first proceeding instituted by the relator for the relief which he now seeks. His petition avers that four other applications have been previously made to this court.1 In none was he successful. Nevertheless, the ban of res judicata cannot operate to preclude the present proceeding, because obviously the mental condition of a person may improve at any time [724]*724(Weihofen, Mental Disorder As a Criminal Defense [1954], p. 383; People ex rel. Thaw v. Lamb, 118 N. Y. S. 389).2 The relator has the burden of proof, however, to demonstrate that he is no longer incapable of understanding the charge against him, and making his defense (People ex rel. Fazio v. McNeill, 4 A D 2d 686).
In the present proceeding testimony was received on behalf of both the relator and the respondent. For the first time the relator was supported by representation of retained counsel, and by the testimony of a qualified psychiatrist, Doctor George S. Cattanach. Doctor Cattanach testified that he had examined the relator on March 26, 1961, and had read the hospital records. It was his unshaken belief that the relator was able to understand the nature of the charge against him and to make his defense. The relator’s attorney testified that he had conferred with the relator, and had received information upon which he had based the petition in this proceeding. The relator testified at length under direct and cross-examination concerning the events of the night before the discovery of the body, and Ms subsequent movements. He said that he had gone to the Bordean home at about 9:30 p.m. of that evening in an automobile driven by a friend, and that this friend had seen him leave the Bordean home and bid good-bye to Mrs. Bordean. He would not, however, divulge the name of the witness, saying that he preferred to keep her anonymous until the trial of the murder charge.
The respondent produced two psychiatrists on the staff of Matteawan State Hospital who testified that from their observation of the relator during several recent interviews, his history, and the hospital records, it was their diagnosis that the relator was afflicted with schizophrenia, paranoid type, and was incapable of understanding the charge against him, and making his defense. They testified that the relator was suspicious and hostile; that he believed that his indictment and commitment were brought about by a conspiracy between the then District Attorney and other law enforcement officers, as well as a group in the Fire Department who were prejudiced against him; and that his present explanation of his movements on the days before and after Mrs. Bordean’s death was bizarre, inconsistent and in part delusional.
[725]*725The test of mental capacity which the law imposes upon a person accused of crime to determine whether he is capable of standing trial may be simply stated: Does the accused have possession of such mental faculties as to be able to understand the nature of the charge or of making his defensef3 (See Penal Law, § 1120; Code Crim. Pro., § 662-b). That test differs considerably from the test prescribed for legal responsibility for the crime charged,4 and from the test prescribed for the capacity to be punished, after conviction,5 and from the test prescribed for disposition of the accused after acquittal.6 [726]*726Despite the simplicity of statement,7 the operation of the test is difficult and places a serious and heavy burden on the court, where, as here, it is faced with conflicting opinions as to mental capacity by reputable psychiatrists (cf. People v. Wolfe, 198 Misc. 695; People ex rel. Bernstein v. McNeill, 48 N. Y. S. 2d 764; People ex rel. Thaw v. Lamb, 118 N. Y. S. 389). Although expert testimony is vital and greatly aids the court, the ultimate responsibility of decision lies with the court (People v. Wolfe, supra, p. 700; People v. Greene, 203 Misc. 191).
In any case where mental disorder is the issue to be decided, .a perplexing and confusing perspective is presented to the court. All physical illness when it is an element of proof must be established by proper medical testimony, and the trier of the facts may at times be compelled to choose between varying opinions. The process may indeed be difficult, but usually there are some objective signs by which the nature and extent of the illness may be distinguished. In the realm of the mind, however, the boundaries and features of the nature and extent of the disorder are more diffuse and dimly perceived. By the same degree of uncertainty the court frequently finds the issue of mental disorder to be clouded and less sharply defined.8
In the present case, however, the issue is further complicated by the unquestioned existence of a physical ailment in the relator — -acromegaly.9 Acromegaly is a disease or malfunctioning of the pituitary gland.10 When it occurs after maturity [727]*727(as in the case of the relator), it is marked by unusual growth and thickening of the bones of the extremities. Doctor Cattanach’s testimony stressed the acromegaly in explaining the relator’s behavior; it was his opinion that the symptoms exhibited by the relator which the doctors at the State hospital found as evidence of schizophrenia were in reality the usual reactions of an acromegaliac. On the other hand, the testimony of the psychiatrists on behalf of the respondent disputed this finding and stated that the symptoms were not common to acromegaliacs, but classically signs of schizophrenia.
The clash of opinion on this basic point has induced the court to examine the medical literature, of which judicial notice is taken.11 It is fairly clear from the studies made in this field that personality changes accompany the onset of acromegaly (Bleuler, “ The Psychopathology of Acromegaly 113 Journal of Nervous and Mental Disease (1951) 497, 500; Davis, “ Endocrinal Defects and Mental States,” 4 Archives of Neurology and Psychiatry (1920) 185, 188-189; Hurxthal, Hare, Horrax and Poppen, “ The Treatment of Acromegaly”, 9 Journal of Clinical Endocrinology (1949) 126, 146; Menninger, ” The Mental Disturbances Associated with Pituitary Disorders ’ ’, 91 Journal of American Medical Association (1928) 951, 954). One authority found that in the earlier stages of acromegaly outbursts of anger or even homicidal mania may be experienced (Hoskins, Endocrinology (1941), 167). Bleuler reports that there are some small groups of schizophrenic psychoses which are taxed by pathologic states of the pituitary gland, but that such psychoses are rare in acromegaly (Bleuler, op. cit., pp. 510, 499). However, it seems to be a moot point whether the emotional maladjustment arises from the glandular disorder, or from the patient’s reaction to the way society views him (Heist and Crawshaw, “ Testing Patterns in Acromegaly ”, 13 Journal [728]*728of Clinical and Experimental Psychopathology (1952) 247, 252).12
Enough has been said to indicate that acromegaly may in certain cases be the source of mental disorder; whether in a given case the symptoms displayed are schizophrenic or the ordinary sequelae of acromegaly seems to be a matter of observation and diagnosis. It is at this point that the medical testimony differs.
The court cannot say from the comparatively short time that it was able to observe and hear the relator that it could determine his capacity to understand the charge against him, and make his defense. Certainly, there are certain aspects of his story which appear inconsistent, even bizarre; on the other hand, he answered questions directly and without elaboration. Nor is it the court’s function on this hearing to determine the veracity of his story, for that is reserved for the trial.
It is not sufficient under section 662-b of the Code of Criminal Procedure that the relator understand the charge against him; the court finds that he does. He must also be capable of making his defense. “Ability to make a defense, however, means more than capacity to discuss his case with his attorney, answer questions, and to understand the nature of legal proceedings. If relator is to go to trial, he should be able to discuss with counsel, rationally, the facts relating to his case which are within his recollection. He should also be able, rationally, to consider the evidence offered against him, to advise with his attorney concerning it, and to make such decisions as may be necessary for him to make during the course of such a trial.” (People ex rel. Bernstein v. McNeill, 48 N. Y. S. 2d 764, 766; see, also, People ex rel. Fazio v. McNeill, 4 A D 2d 686.)13
Viewing the case in its entirety, the court finds that it should be assisted by the opinion of an independent, disinterested psychiatrist. An adversary setting is not always the best [729]*729method to determine mental condition (Roche, The Criminal Mind [1959], p. 133). Fortunately, the law has provided the court with the power to he informed by such expert testimony under the provisions of section 32 of the Judiciary Law (cf. Note, “Releasing Criminal Defendants Acquitted and Committed because of Insanity; The Need For Balanced Administration,” (68 Yale L. J. 293, 304).14 Accordingly, the court directs that the Attorney-General submit an order on notice to the attorney for the relator, providing for the appointment of a psychiatrist to be selected by the court, ordering that the relator be examined by such psychiatrist, that the hospital records, the exhibits received on this hearing, and the briefs of counsel be made available to him, that he make a written report to the court, copies of which are to be sent to the Attorney-General and the attorney for the defendant, and that thereafter he shall be available for examination by either or both parties upon the resumption of the hearing to be noticed by either party.