GASCH, District Judge:
Appellant Randolph Greene, while serving a sentence of 20 years for armed bank robbery, was, at his mother’s request, permitted to attend the funeral of his father on September 24, 1971. He was accompanied to the funeral by four armed deputy marshals. His half-brother, LaVance Greene, during the course of the funeral service in a crowded church, disarmed the deputy marshals, released his brother from custody, shot to death one of the deputy marshals, took their guns, commandeered at gunpoint a passing automobile, and attempted to escape with his half-brother Randolph. A passing police car gave chase and after a high speed pursuit, with the assistance of two motorcycle officers, several miles later, effected the arrest of the two appellants. Charges of felony murder, premeditated murder of Federal officer, four counts of armed robbery, rescue of a prisoner, as well as escape from custody were brought against the two brothers. Randolph Greene was convicted only of escape. LaVance Greene was convicted by jury verdict of the other charges.
Numerous points are raised by appointed counsel, three of which were emphasized at oral argument. Counsel challenged the jury selection system then in force and effect in this district. He challenged the legality of the felony murder conviction in that the felony LaVance Greene is charged with committing at the time of the shooting of the deputy marshal was a Federal felony which, counsel says, cannot be joined with the local (Title 22, D.C.Code) felony murder statute. He challenges the burden placed on LaVance Greene regarding the insanity instructions. We affirm the judgments on Count 3 (felony murder), Counts 7, 9, 11, and 13 (armed robbery, as to LaVance Greene), and Count 6 as to Randolph Greene. We vacate the remaining judgments of conviction as to LaVance Greene.
I.
CHALLENGE TO THE JURY SELECTION SYSTEM
With respect to appellant’s first challenge, namely, the jury selection system, the record reflects that the trial [1148]*1148judge, on two occasions, extended the time within which pretrial motions could be filed. No request was made by defense counsel to file a motion to dismiss the indictment because of the jury selection system until January 17, 1972, the day of trial. This challenge is untimely. Appellate counsel was uninformed as to when trial counsel for the defense first learned of any problem with respect to the jury selection in the instant case. Counsel filing this motion and swearing to the required affidavit was Miss Sarah E. Brown of the Public Defender Service. The records of the trial Court, of which this Court may take notice, indicate that a similar motion raising the same points was filed in United States v. Johnson, Criminal Case No. 1690-71. Counsel pressing these similar motions in the Johnson ease were Mr. Robert Weinberg and Mr. Matthew Zwerling, also of the Public Defender Service. The date on which these similar motions were filed and documented with comparable material was October 28, 1971. It is clear that the basis for the motion filed before the trial judge in the instant case was known to Miss Brown’s office as early as the 28th of October, 1971.
Section 1867(a) of the Jury Selection and Service Act of 1968, Pub.L. 274 of the 90th Congress, 28 U.S.C. § 1861 et seq., provides as follows:
(a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (Emphasis supplied.) It is reasonable to conclude that the basis for filing these motions was well known to the lawyers who comprise that Service. Failure to file this motion reciting similar grounds as the motion filed in the Johnson1 case until the day of trial stamps the filing as untimely.
Counsel acknowledges that only six of a possible 20 peremptory challenges were made by defense counsel in the process of selecting a petit jury. He conceded he was uninformed as to the composition of the petit jury, that is to say, what their ages were, or what their economic status was. He persists, however, in saying that the jury selection system does not fairly select young people and poor people.
The Jury Selection and Service Act of 1968, Pub.L. 90-274, March 27, 1968, requires that litigants shall have the right to trial by jury, both grand and petit, selected at random from a fair cross-section of the community in the district wherein the court convenes. (Section 1861). Section 1862 prohibits exclusion from service of any citizen on the ground of race, color, religion, sex, national origin, or economic status. Section 1863 provides that a plan be devised by the District Court and approved by the Judicial Council of the Circuit and the Chief Judge of the District Court. In conformity with the authorization contained in paragraph (b)(2), the plan for this District utilized the City Directory rather than the voter list. No challenge was made that jurors selected for the grand jury and the petit jury panel were not randomly selected from the City Directory in accordance with the Circuit approved plan.
The motion, filed on the day of trial, contains certain conclusory statements without any adequate underlying factual data. Counsel contends that the poor and the young are excluded from the jury selection plan. The record discloses [1149]*1149no evidence of exclusion on account of race, color, religion, sex, national origin, or economic status (§ 1862). What appellants contend, as we understand their argument, is that since certain rolls of the Manpower Commission and the Bail Agency applicant list reflect a substantial percentage of persons not listed in the City Directory that the selection process must be deficient.
As a matter of decision law, there are a number of objections to the thesis propounded by appellants. First, while it is clear that the intention of the Jury Selection Act is to obtain a jury that is fairly representative of a cross-section of the community (see Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946)), it is also clear that there is no constitutional requirement that the jury pool be a statistical mirror of the community. Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961). The fact, if it is a fact, that there are fewer young people on the jury than the exact proportions of young persons in the community does not of itself make a jury nonrepresentative. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
It bears emphasis that there is no claim in the case before us of a purposeful exclusion of young persons, but only a claim that the system of jury selection results in an under-representation.
The Jury Selection Act itself does not refer to young people as a class. Serious question arises as to whether young people are an identifiable class. No criteria are set forth in the Act on the basis of which the class is described. Young people are characterized by as many variables, varying philosophies, education, earning capacities, as old pro-pie, or middle aged people, or any other group concerning which known and admitted variables exist. With the exception of United States v. Butera,2 420 F. 2d 564 (1st Cir. 1970), all Federal courts, both at the trial level and at the circuit level, have held that the category of “young persons” is not a cognizable class that must be systematically mirrored in jury selection procedures. See United States v. Guzman, 337 F.Supp. 140 (S.D.N.Y.1972). The Court said at page 146:
The mere fact of similarity in age cannot, by itself, be sufficient to define a cognizable group. If it were, any jury selection system could be successfully attacked by a strategic drawing of age group lines.
******
In accordance with the long line of cases cited above, this court cannot accept the proposition that members of arbitrarily drawn age brackets necessarily constitute valid categories for measuring the legality of a jury selection system.
To the same effect, see United States v. Gargan, 314 F.Supp. 414 (W.D.Wis. 1970). The Gargan case was affirmed by the Seventh Circuit sub nom. United States v. Gast, 457 F.2d 141 (7th Cir. 1972). Judge Frank Kaufman’s decision in United States v. Cohen, 275 F.Supp. 724 (D. Md. 1967), was affirmed by the Fourth Circuit sub nom. United States v. DiTommaso, 405 F.2d 385 (4th Cir. 1968). In affirming, the Fourth Circuit said:
As to age as a measure of representation, we do not believe that members of arbitrarily drawn age brackets necessarily constitute valid categories for measuring the legality of jury selection.
405 F.2d at 391.
To the same effect, see United States v. Kuhn, 441 F.2d 179, 181 (5th Cir. 1971). It is interesting to note that Judge Coffin, who wrote the opinion of the First Circuit in Butera, supra, in a subsequent case, United States v. Camara, 451 [1150]*1150F.2d 1122 (1971), rejected out of hand a contention that persons under 25 were underrepresented on grand juries in the District of Massachusetts.
In the absence of a claim of purposeful exclusion, we see serious problems in a legal claim based on statistical under-representation of a sub-class of the young, the middle-aged, the middle-income, manual laborers, college graduates, and so on, ad infinitum, as to all the matters that some lawyers may identify as having a bearing on the jury’s action. We have thought it useful to discuss problems presented by appellant’s thesis even though, in view of the lack of timely objection, we do not decide this matter on the merits.
As to the alleged underrepresentation of persons in the lower economic group, no showing whatsoever has been attempted to show any intentional deletion of such persons. By referring to random sampling, efforts on the part of statisticians to establish that persons on the Manpower Commission rolls, on the Bail Agency lists, and among clients of the Neighborhood Legal Services, are underrepresented, counsel has simply demonstrated that for one reason or other these persons are more likely to move than other members of the general population, but no evidence is supplied indicating exclusionary practices. That is what the Act prohibits. Exclusion of day laborers in Thiel, sy/pra, was sufficient to invalidate the conviction. Here, the Court is confronted with no comparable situation.
II.
THE FELONY MURDER CONVICTION
The third count of the indictment on which La Vance Greene was convicted is drawn under 22 D.C.Code § 2401 (1967) and charges him with first degree murder committed while perpetrating the crime of rescuing a federal prisoner. In pertinent part, 22 D.C. Code § 2401 reads as follows:
Whoever, being of sound memory and discretion, kills another purposely, * * * in perpetrating or attempting to perpetrate any offense punishable by imprisonment in the penitentiary, * * *. (Emphasis added.)
The crime of rescuing a federal prisoner is defined by 18 U.S.C. § 752(a).
The appellant argues that the term “any offense” in Section 22-2401 “includes only the local felonies created by D.C.Code and not the national felonies created by U.S.Code.” Contending the rescuing a federal prisoner “is exclusively a national crime”, counsel for the appellant reaches the conclusion that there is no statute which creates the offense alleged in the third count. In support of this thesis doubt is expressed that Congress intended “parochial penal legislation”, such as the District of Columbia statute, to be applied in implementing statutes creating “national crimes”. It is said “a construction favoring such unnecessary implementation will produce discriminatory, harsh results” in that the penalty for first degree felony murder will be more severe in the District of Columbia than elsewhere under the federal statute.
The question presented is one of congressional intent: did Congress intend the plain words “any offense” to include a Title 18 offense committed in the District of Columbia? We think Congress did so intend. The Federal Criminal Code embodied in Title 18 and the District of Columbia Criminal Code of Title 22 were both enacted by Congress and were intended to exist together. Johnson v. United States, 225 U.S. 405, 32 S.Ct. 748, 56 L.Ed. 1142 (1912). We believe further that they were intended to mesh with each other, and they have been so construed in the past. Thus a violation of the District of Columbia Code has been held to be an offense against the United States; and an indictment is good which alleges a conspiracy under the federal statute to commit an offense against the United States by violating the District of • Columbia Code. United States v. Cella, 37 App.D.C. 423 (1911), cert. denied, 223 U.S. 728, 32 S.Ct. 526, 56 L.Ed. 633 (1912) (con[1151]*1151spiracy to violate the District of Columbia bucket shop law); Fletcher v. United States, 42 App.D.C. 53 (1914) (conspiracy wrongfully to accuse a woman of unchastity and to commit perjury); Arnstein v. United States, 54 App.D.C. 199, 296 F. 946, cert. denied, 264 U.S. 595, 44 S.Ct. 454, 68 L.Ed. 867 (1924) (conspiracy to bring stolen stock into the District of Columbia); see Beard v. United States, 65 App.D.C. 231, 82 F.2d 837, cert. denied, 298 U.S. 655, 56 S.Ct. 675, 80 L.Ed. 1382 (1936) (conspiracy to violate D.C. gambling laws); cf. Lee v. United States, 72 App.D.C. 147, 112 F.2d 46 (1940); Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49 (1956) (conspiracy to commit bribery). In short, it has long been understood and held that the two codes are reciprocal in their operation.
To adopt appellant’s construction would lead to an anomalous result, one that Congress could not conceivably have intended. If one killed during the course of a robbery on the street in front of a bank, he could be prosecuted for felony murder under the D.C.Code, but if during the course of a robbery in a bank a killing occurred, that robber could not be prosecuted for felony murder under the D.C.Code. Such a construction must be rejected.
The appellant’s argument that our construction will “produce discriminatory, harsh results” is answered by Johnson v. United States, supra. As the Supreme Court said (225 U.S. at 418, 32 S. Ct. at 752): “There is certainly nothing anomalous in punishing the crime of murder differently in different jurisdictions. It is but the application of legislation to conditions.”
Appellant also argues that he was denied equal protection of the laws because of the breadth of the District of Columbia felony murder statute; that is to say, he alleges that it is broader than the coverage of the federal felony murder statute. Whether prosecution is brought in this jurisdiction under the D.C.Code or whether it is brought under an applicable section of the United States Code is a matter confided solely to the discretion of the United States Attorney.
Congress was not limited in the D.C.Code specification for first degree felony murder to the felonies set forth in the Federal Code, as pertinent to murder within the special maritime and territorial jurisdiction of the United States, see 18 U.S.C. § 1111. Certainly there would be no constitutional objection to a trial for first degree felony murder in, say, Virginia, if that commonwealth defined that offense to include homicides that were purposeful (though falling short of the premeditated) and were committed in the course of the felony of escape from lawful custody, including homicides, perhaps of bystanders, in the course of the felony of escaping from a Federal marshal. Congress, in legislating for the District of Columbia, had all the powers of the Virginia legislature to legislate concerning homicides occurring within the territorial limits of Virginia, and could go beyond the Federal maritime code.
Counsel also attacks the charge in Count 3 for the reason that the trial court did not instruct on all the elements. Particularly, he says that the trial court did not tell the jury that the government was required to prove, among other things, that LaVance Greene was of sound memory and discretion. It is well settled that no allegation of sanity is required in an indictment, nor does the language of Section 2401 of Title 22 of the D.C.Code require that the indictment include the allegation that the defendant was of sound memory and discretion. See Jones v. United States,3 [1152]*1152111 U.S.App.D.C. 276, 296 F.2d 398, cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962). See also Coleman v. United States, 111 U.S.App.D.C. 210, 295 F.2d 555, cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613, rehearing denied, 369 U.S. 842, 82 S.Ct. 870, 7 L.Ed.2d 847 (1962). In Coleman, the defendant was convicted of first degree felony murder. Counsel attacked the indictment for the reason that it did not contain the statutory allegation that the defendant was of sound memory and discretion. He recognized that such a. contention had been specifically rejected by this Court in the Hill (Hill v. United States) case, 22 App.D.C. 395, 400-402.4
In United States v. Green, 150 U.S. App.D.C. 222, 463 F.2d 1313 (1972), in footnote 5, we affirmed what we held in Hill and Coleman, supra.
The trial court in instructing the jury on the elements of felony murder (Tr. 985) set them forth clearly and explicitly. There is in the record ample evidence to support the jury’s'finding of guilty.
III.
INSANITY AS A DEFENSE
Appellant attacks Section 207(6) of the District of Columbia Court Reform and Criminal Procedure Act of 1970, P. L. 91-358, which added a new sentence at the end of 24 D.C.Code § 301(j), so as to place the burden upon a defendant asserting insanity as a defense to prove this defense by a preponderance of the evidence. Section 301(j), as amended, provides:
Insanity shall not be a defense in any criminal proceeding in the United States District Court for the District of Columbia or in the Superior Court of the District of Columbia, unless the accused or his attorney in such proceeding, at the time the accused enters his plea of not guilty or within fifteen days thereafter or at such later time as the court may for good cause permit, files with the court and serves upon the prosecuting attorney written notice of his intention to rely on such defense. No person accused of an offense shall be acquitted on the ground that he was insane at the time of its commission unless his insanity, regardless of who raises the issue, is affirmatively established by a preponderance of the evidence. (Emphasis supplied.)
This ease presents no ex post facto question, as the provision became effective February 1, 1971, prior to the September 24, 1971, date of the homicide in this case.
Appellant’s first attack on the statute in question is that it applies only to insanity and not to productivity. He is clearly wrong in this for the reason that the Act is addressed to the defense óf insanity, which, in this jurisdiction, at the time of the offense charged in this indictment, was a unitary concept which required proof of insanity and productivity.5
[1153]*1153Appellant next argues that the Act is unconstitutional on its face. In reliance upon our decision in United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333, cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972), appellant seeks to demonstrate that since a different standard of proof concerning the defense of insanity is provided by Section 207(6) of the Court Reform Act than is applicable in other federal jurisdictions, that the Act amounts to a denial of equal protection. The Thompson case was concerned with two standards, each enunciated by Congress, each applicable to bond pending appeal. We decided that insofar as D. C.Code offenses are concerned the standard enunciated in the Court Reform Act and applicable specifically to the District of Columbia should apply, and that the standard enunciated by Congress insofar as federal offenses are concerned, should apply to those offenses.
The District of Columbia is unique in our constitutional system. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973). This accounts for the unique situation in which jurisdiction over criminal violation of the District of Columbia Code is vested concurrently both in the Superior Court of the District of Columbia, a statutory court established pursuant to Article I, see Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (Apr. 24, 1973), and in the United States District Court for the District of Columbia, a constitutional court established under Article III of the Constitution.
The provision of the Court Reform Act making its provisions relating to the defense of insanity applicable to offenses committed in the District of Columbia, clearly has application to the counts charging first degree felony murder in violation of 22 D.C.Code § 2401 — count 2 (felony murder committed while perpetrating a robbery) and count 3 (felony murder committed while perpetrating the crime of rescuing a federal prisoner) — whether those crimes are prosecuted in the United States District Court for the District of Columbia or in the Superior Court of the District of Columbia.
We continue to put to one side, as we did in Brawner, whether those provisions were intended to or can have application to a prosecution in the District Court of a violation of Title 18 of the United States Code, which is intended for enforcement throughout the Federal court system. In enacting local criminal statutes in the exercise of its singular constitutional responsibility to legislate for the District, Congress need not hew to the same path it elects in defining criminal offenses of nationwide applicability, pursuant to its Federal legislative powers. Thus viewed, we find no inconsistency whatever in applying to a D.C. Code offense — albeit tried in the United States District Court — a standard of proof different from that of a Federal offense tried, for example, in the District Court for the Southern District of New York. Indeed, it would be more anomalous for one standard, at least of a substantive or crucial nature, to be applied when a D.C.Code offense is tried in the Superior Court and another when the same offense is tried in the District Court. Section 207(6) obviates this by providing that a single rule of insanity shall apply to all D.C.Code offenses, regardless of the tribunal before which they are tried. We cannot accept appellant’s suggestion that this works a denial of the equal protection of the laws.
Appellant also contends that Section 207(6) of the Court Reform Act amounts to a denial of due process. We find this contention equally without merit.
The Supreme Court in Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), sustained an Oregon statute which required a defendant asserting insanity as a defense to prove that defense beyond a reasonable doubt. Here, Congress, in its exclusive constitutional authority to legislate for the Dis[1154]*1154trict of Columbia,6 7has required that a defendant asserting insanity as a defense prove such defense by a preponderance of the evidence. Congress was concerned that potentially dangerous offenders who successfully pleaded insanity as a defense might be released again to commit offenses without receiving adequate psychiatric treatment. To establish the defense of insanity prior to the Court Reform Act, it was required only that “some evidence” of insanity be shown.7 Thereafter, it was incumbent upon the government to prove beyond a reasonable doubt either that the defendant was not suffering from a mental disease or defect or, if he were, that the criminal act was not the product of the mental illness.
The difficulty which arose and which was recognized by this Court in a number of decisions was that one mandatorily committed under the provisions of Title 24, Sections 301 et seq., of the D.C. Code could be committed to a mental institution simply because the government had failed to prove sanity beyond a reasonable doubt. Judge Fahy, in his concurring opinion in Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 281 F.2d 943 (1960), expressed doubt about whether confinement in a mental institution can be predicated upon what may be nothing more than a jury’s finding of reasonable doubt concerning a defendant’s mental condition.8 In Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), this Court recognized the consequences of this situation and required that one found not guilty by reason of insanity should be given a hearing promptly after his commitment following a verdict of not guilty by reason of insanity. It was this decision, the legislative history of the Court Reform Act reflects,9 that motivated Congress to specify that insanity is an affirmative defense and that one asserting it must prove it by a preponderance of the evidence.
Reliance by appellant on the proposition thatjn re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), has, in effect, overruled Leland v. Oregon, swpra, is misplaced. In re Winship did [1155]*1155not involve insanity as a defense. Win-ship involved proof of facts — -“the occurrence of an event” — while insanity deals with proof of “mental condition and propensity.” United States v. James Brown, 478 F.2d 606 at 609 (January 8, 1973). It required that the elements of a juvenile offense be proved beyond a reasonable doubt. This had previously been made clear in the Gault case, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), but the Court of Appeals of New York had affirmed a decision consistent with the New York statute that a juvenile could be found “involved” by a preponderance of the evidence. Since “involvement” authorized substantial deprivation of liberty by confinement, the Supreme Court reversed. To support his conclusion, counsel for the appellant relies on United States v. Eich-berg, 142 U.S.App.D.C. 110, 439 F.2d 620 (1971). There, a conviction of forgery and uttering was affirmed. The per curiam decision held that “ordinarily, ‘in view of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments’- the jury’s verdict must stand.” 142 U.S. App.D.C. at 111, 439 F.2d at 621. In a separate concurring opinion, Chief Judge Bazelon, citing In re Winship, supra, questioned the continued vitality of Leland: It is noted, however, that the Supreme Court’s opinion in Winship cited with approval a group of prior decisions, including Leland v. Oregon.
The essential elements of the charge of felony murder do not include proof of sanity. If that were the case, the Government would be required to produce evidence establishing sanity beyond a reasonable doubt as part of its direct case, before the defendant introduced an iota of testimony, and that is not and never has been the law. The elements of felony murder applicable to Count 3 are that a felony was attempted or being perpetrated and that during the course of that action the deceased was purposely killed. As to the meaning of purposely, see Collazo v. United States, 90 U.S.App.D.C. 241, 246, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952). See also Coleman, Jones, and Green, supra. In .determining whether Leland v. Oregon is modified or overruled by In re Win-ship, consideration should be given to the more recent case of Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), in which the Court held that it was consistent with due process to determine the voluntariness of a confession by a preponderance of the evidence rather than by proof beyond a reasonable doubt. Here, since sanity is not one of the elements of felony murder but lack of sanity may be interposed as a defense, Congress may with propriety enunciate the standard of proof required of the party asserting this affirmative defense, i. e., proof by a preponderance of the evidence. That is the situation, at least unless and until Leland is overruled.
The scope and reach of the Winship case was one of the issues confronting the Second Circuit in United States v. Braver, 450 F.2d 799 (2d Cir. 1971). There, appellant challenged the trial court’s instructions regarding the defense of entrapment. The trial judge had followed the rationale of Judge Learned Hand in United States v. Sherman, 200 F.2d 880 10 (2d Cir. 1952), in which it was stated that on the issue of inducement the defense has the burden. In affirming the conviction and explaining its understanding of Winship, the Second Circuit at page 803 of Braver held that placing the burden of proving inducement on the defendant does not constitute a denial of due process. “The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364, 90 S.Ct. at 1073.
[1156]*1156In Phillips v. State, 86 Nev. 720, 475 P.2d 671 (1970), cert. denied, 403 U.S. 940, 91 S.Ct. 2260, 29 L.Ed.2d 719 (1971), the Supreme Court of Nevada rejected the argument that In re Win-ship changes the concept that one asserting the affirmative defense of insanity must prove insanity by a preponderance of the evidence.
Whether sanity is an element of the crime of murder which must be proven by the state is a question that has been well-settled. Insanity is an affirmative proposition which the defendant must establish by a preponderance of proof. Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968). Appellant is in error when he asserts that In re Winship, . . . recently decided, changes that concept.
475 P.2d at 672.
It is noted that only two of the Justices of the Supreme Court voted to review the case. 403 U.S. 940, 91 S.Ct. 2260.
For seventy-five years Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), has been recognized in the federal courts as authority for the proposition that when evidence of insanity is present for the consideration of the jury that it is incumbent upon the prosecution to establish beyond a reasonable doubt that the defendant was responsible criminally for his acts.11 Here, the charge is felony murder, not common law murder, and accordingly, no proof of premeditation, deliberation, and malice is required. If the killing was purposely, i. e., intentionally, done during the course of the commission of a felony, or the attempted commission of a felony, the essential elements of felony murder as charged in Count 3 have been proved. Davis in effect confirms our earlier observation that sanity is not an essential element of the offense, for otherwise Davis would have required the prosecution to have proved sanity beyond a reasonable doubt as part of its direct case, whereas the Court merely left the issue as one that does not arise in the case unless there is some evidence of insanity, which typically calls on defendant to make some affirmative presentation. Of even more critical importance is the fact that the Supreme Court enunciated the Davis doctrine as part of its supervisory authority over the federal courts. The Court clearly reflected that no constitutional issue compelled the decision. Since Congress, as part of its constitutional authority over the District of Columbia, has established the rule which was followed by the trial court in the instant case, we recognize that Congress has acted within the bounds of its constitutional authority and the preponderance rule for an affirmative defense is not a denial of due process of law. Again, we say this in the context of Leland v. Oregon as an authoritative and binding precedent, unless modified or overruled by the Supreme Court.
IV.
BIFURCATION
In a number of eases this Court has recognized the desirability of bifurcating that portion of a criminal trial which concerns insanity as a defense. The Court has recognized that a considerable degree of discretion must be ac[1157]*1157corded the trial court in making its determination on this issue. In Holmes v. United States, 124 U.S.App.D.C. 152, 154, 363 F.2d 281, 283 (1966), we set forth the fundamental rule:
The court not only has a broad discretion in considering bifurcation, but also in prescribing its procedure, the form of the charge and submission of the questions to the jury, the admissibility of evidence in each stage, and even the impaneling of a second jury to hear the second stage if this appears necessary to eliminate prejudice.
On the facts of this case, and particularly since Randolph Greene did not wish to interpose the defense of insanity, it appears that the trial court’s ruling to bifurcate the case had a substantial basis. Additionally, it permitted the defense to call Randolph Greene as a witness in the second stage of the trial without subjecting him to cross-examination on the merits.
There is no showing here that any evidence which counsel wished the jury to consider on behalf of LaVance Greene was excluded either prior to the time the case was submitted to the jury on the indictment or at the bifurcated stage where insanity was the sole issue. Under these circumstances, we see no basis for reversing the determination of the trial court or regarding his decision as an abuse of discretion.
Most of our eases in which the issue of bifurcation has been raised are cases in which the trial judge refused to bifurcate. In footnote 2 in United States v. Grimes, 137 U.S.App.D.C. 184, 421 F. 2d 1119 (1969), Judge McGowan, speaking for the Court, considered five cases in which we sustained the discretion of the trial judge in denying bifurcation. There is no intimation in any of these cases that it would have been error to grant bifurcation, nor has it been contended in any of our cases that to do so would have been an abuse of discretion. In Contee v. United States, 133 U.S. App.D.C. 261, 262, 410 F.2d 249, 250 (1969), we said: “ * * * the trial court should be alert to the need for separate trials whenever the accused proposes to present an insanity defense regardless of whether defense counsel makes an initial request or an initially sufficient showing of need.”
Ordinarily, where the defense on the merits is confined to putting the government to its proof, failure to order bifurcation is not regarded as an abuse of discretion. See Parman v. United States, 130 U.S.App.D.C. 188, 399 F.2d 559, cert. denied, 393 U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968). However, we have recognized as in United States v. Bennett, 148 U.S.App.D.C. 364, 460 F.2d 872 (1972), that an entire defense may be prejudiced by the intermingling at trial the insanity defense with the defense on the merits. In- Bennett’s case, the testimony of the government psychiatrist that Bennett had a very good recollection of the events and that he recalled minutely what happened prior to the offense was deemed prejudicial. It is obvious that bifurcation would have been the preferable course in Bennett’s case. It is also obvious that a serious question was raised under 18 U.S.C. § 4244 by the admission of such testimony. We held that reversal was required for that and other reasons.
Here, no abuse of discretion has been shown. Additionally, the obvious way to avoid confusion in instructing a jury on the standard of proof required of one interposing insanity as a defense, namely, by a preponderance of the evidence, is to bifurcate the insanity defense.
V.
PREMEDITATED MURDER OF A FEDERAL OFFICER
Appellant raises a question whether the procedure followed under the 1970 amendments of the D.C.Code were rightly applied to his trial under 18 U.S.C. § 1114 (count 1), for premeditated murder of a federal officer. The general Federal rule provides that once the defendant has adduced appropriate evidence concerning the insanity de[1158]*1158fense, the burden is on the government to prove beyond a reasonable doubt that defendant did not have such mental disease in order to prove him guilty of having committed such an offense. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895). A question arises as to whether the Davis rule, which was applicable to all other federal district courts, is inapplicable to the United States District Court for the District of Columbia, by virtue of the 1970 amendment to the D.C.Code, when that court is engaged in the trial of an indictment charging violation of a federal murder statute, i. e., 18 U.S.C. § 1114. The question raises serious issues, compare United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). We do not think it necessary to decide that issue in this case, however, because of the concurrent sentences for felony murder under the D.C.Code, and accordingly, we think it in the interest of justice to follow the practice set forth in the Hooper12 line of cases, and will vacate the judgment on Count 1. We discern no prejudice to the government and this course obviates the need for ruling in this case on an issue that should be decided only where it is truly material to the controversy.
VI.
RESCUE OF A FEDERAL PRISONER IN VIOLATION OF 18 U.S.C. § 572(a)
Appellant attacks the conviction under this section of Title 18 on the same basis as his attack on Count 1 (premeditated murder of a Federal officer). The trial court sentenced the defendant LaVance Greene consecutively under this count.
The sentence imposed by the trial court for the offense of rescue was consecutive to the sentence imposed for felony murder and armed robbery. In Blockburger v. United States, 284 U.S. 299, at 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court set forth the controlling rule:
Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a .fact which the other does not.
Here, the charge of felony murder (Count 3) includes every essential fact element of the rescue charge. For the reasons set forth in United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (D.C. Cir. 1972, as amended March 8, 1973), we conclude that there has been a merger between the felony alleged as part of the felony murder in Count 3 and that a consecutive sentence for the felony of rescue is improper and that therefore the conviction of the rescue offense charged in count 5 of the indictment should be vacated.
VII.
ARMED ROBBERY CONVICTIONS
LaVance Greene’s four armed robbery convictions, as a result of which he was given a concurrent sentence of 15 years to life, followed adequate instructions by the court on the essential elements of these offenses and are predicated upon clear evidence appearing in the record and since they are local offenses, the defense of insanity is controlled by the recent act of Congress to which reference has been made previously. The armed robbery counts are affirmed.
[1159]*1159VIII.
ESCAPE
Randolph Greene, the prisoner from Lewisburg Penitentiary who received permission to come to Washington under guard to attend his father’s funeral, challenges his conviction of escape under section 751 of Title 18, United States Code. He affirmatively stated in open Court that he did not wish to have his counsel interpose the defense of insanity. He challenges his conviction, however, on two separate grounds. First, the government was permitted to show thát he had on a prior occasion attempted to escape from confinement. It has long been recognized that one’s motive, design, or intent may be shown by' reference to prior criminal conduct not charged in the indictment. See Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), and United States v. Bobbitt, 146 U.S.App.D.C. 224, 450 F.2d 685 (1971). Randolph Greene’s other objection is that he was coerced to go with his brother who was armed and directed him to leave the church and to go up the street. He states that his act in leaving the church was not voluntary and in support of that relies on the testimony of one witness who said there was nothing else he could do, and another witness who says he heard him say:’ “My God, man, not this.” Evidence to the contrary, relied on by the government and accepted by the jury, shows that when one of the marshals seated near Randolph Greene questioned him concerning the identity of the man who came into the church in the middle of the services, went to the casket, and after making the sign of the cross spoke to Randolph Greene’s mother before leaving the church. He answered, I don’t know; I’ve never seen him before. That man was the defendant LaVance Greene. When directed to leave the church, the first thing Randolph told LaVance Greene was, “Look out, there’s another one of them outside.” Further evidence of voluntary participation in the escape was Randolph Greene’s question to his brother: “Which way shall we go?” Further evidence to the vol-untariness of the act was that Randolph Greene followed after LaVance Greene. In the final analysis, the jury was properly and adequately instructed as to the essential elements of escape and clearly there was evidence on the basis of which the jury was justified in finding Randolph Greene guilty beyond a reasonable doubt.
As to appellant LaVance Greene, the judgments on counts 1 and 5 are vacated, the judgments on counts 3, 7, 9, 11, and 13 are affirmed. The judgment as to Randolph Greene is affirmed.
So ordered.
ON APPELLANT’S SUGGESTION FOR REHEARING EN BANC
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MaeKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
ORDER
Appellant has filed a petition for rehearing en banc. On consideration thereof, it is
Ordered by the Court en banc that the suggestion for rehearing en banc is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Circuit Judges J. SKELLY WRIGHT and SPOTTSWOOD W. ROBINSON, III, would grant rehearing en banc.