author: DONALD RUSSELL, Circuit Judge.

text:
    Gene DAVIS, t/d/b/a Tar Heel Oil Company, Inc., Plaintiff-Appellee, v. CROWN CENTRAL PETROLEUM CORPORATION, Defendant-Appellant. U-FILL ’ER-UP, INC., Plaintiff-Appellee, v. CROWN CENTRAL PETROLEUM CORPORATION, Defendant-Appellant.
    Nos. 73-1652, 73-1833.
    United States Court of Appeals, Fourth Circuit.
    Argued July 16, 1973.
    Decided Aug. 21, 1973.

      A. Ward McKeithen, Charlotte, N. C. (Fleming, Robinson & Bradshaw, Charlotte, N. C., on brief), for appellant in No. 73-1652.
    J. Nat Hamrick, Rutherfordton, N. C. (Hamrick & Hamrick, Rutherfordton, N. C., A. Myles Haynes and Haynes, Baucom & Chandler, Charlotte, N. C., on brief), for appellee in No. 73-1652.
    Bynum M. Hunter, Greensboro, N. C. (Richard W. Ellis, Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellant in No. 73-1833.
    William D. Caff rey, Greensboro, N. C. (Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), Lawrence Egerton, Jr., Greensboro, N. C. (A. Myles Haynes, Haynes, Baucom & Chandler, Charlotte, N. C., on brief), for appellee, in No. 73-1833.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge.

These two cases, combined on hearing because of their similarity of issues, are unfortunate by-products of the current oil shortage. Both the plaintiffs and the defendant are victims of the shortage in one form or another. They may properly be termed independents in their own particular type of operation. The plaintiffs, both citizens of North Carolina, on the one hand, are small independent oil dealers with their main operations in North Carolina. The defendant, on the other hand, is a refiner, dependent almost entirely on producers for its supply of crude oil. It has for some years been selling its product to the plaintiffs. In anticipation of the oil shortage, which all parties in the industry apparently foresaw, discussions were had among the parties as to future supplies. It is contended by the plaintiffs that the defendant agreed to supply them with certain fixed quantities of gasoline. As the energy crisis deepened, the suppliers of the defendant reduced drastically its supply of crude oil. It accordingly proceeded to allocate on a lower percentage its deliveries to its contract customers and to notify customers such as the plaintiffs, whom it denominated non-contract customers, that it would make no further sales to them. These actions followed that notification. The plaintiff Davis filed his action originally in the Western District of North Carolina, seeking injunctive relief against what he claimed was a breach of contract involving irreparable injury and damages for violation of the Sherman Act. Jurisdiction was based on diversity of citizenship and federal question. The other action was first instituted in the State Court and removed to the District Court for the Middle District of North Carolina. The plaintiff in this action sought similar relief to that demanded in Davis and federal jurisdiction was predicated on similar grounds. Preliminary injunctive relief was sought in both cases by the plaintiffs and were granted in both instances by the District Court having jurisdiction of the actions. It is from these grants of injunctive relief that the defendant has appealed in each case. Since there is similarity both of facts and issues in both cases, we ordered the appeals argued together and we shall dispose of both together. We reverse in both cases.

In granting temporary injunctive relief, the District Court in each instance made specific Findings of Fact. The defendant contends that these Findings show on their face that the temporary injunctive relief was improvidently granted. Specifically, it attacks the Finding made by the District Court in each case that the plaintiffs were likely to prevail eventually on the merits. Such a finding is necessary for the granting of preliminary injunctive relief. Long v. Robinson (4th Cir. 1970) 432 F.2d 977. This basic contention presents the issue on appeal.

In support of its conclusion that the plaintiffs were likely to prevail, the District Court in each case found that there was an oral agreement between the plaintiff and the defendant whereby the defendant was to supply the plaintiffs with their gasoline requirements. In the TJ-Fill ’Er-Up Case, the District Court found that, since the plaintiff had expended considerable sums in developing gasoline outlets, termination of supply by the defendant was “not reasonable.” It, also, based its conclusion in part at least on considerations of public policy, stating that “as a matter of equity, suppliers should ration their product to historical customers in times of national shortage on a pro rata basis and that this principle has been recognized by the Congress of the United States in passing certain legislation that calls for a pro rata distribution of petroleum products to historical customers based upon the product purchased during a base period defined as the fourth quarter of 1971 and the first three quarters of 1972” and “that the public has a definite interest in preserving a competitive retail gasoline market and the elimination of the Plaintiff and other independent oil jobbers would be against the public interest.” The District Court in that case ordered the defendant to supply the plaintiff U-Fill ’Er-Up with gasoline “on the basis of 2.12% of the total gasoline sold by the Defendant while this Order is in effect.”

In the Davis Case, the District Court found there was an agreement between the plaintiff and the defendant “for the purchase of goods vastly exceeding $500.00”, which was “not written nor evidenced by any writing” and which, though obligating defendant to supply the plaintiff as much as 1,200,000 gallons per month, did not obligate the plaintiff “to purchase that quantity nor any set quantity of gasoline.” Although it recognized that the defendant was suffering hardship, too, on account of the oil crisis, the District Court found that, “[T]he balance of hardship favors the relief sought by the plaintiff” and “[T]hat the public interest will not be harmed by the issuance of an injunction.” It accordingly ordered the defendant to “continue to supply plaintiff with at least 300,000 gallons of gasoline products per month * * * pending further orders of this Court * *

The defendant denied in both cases the existence of any valid agreement. In support of this position, it asserts the alleged agreements are lacking in mutuality and definiteness of duration. Moreover, it argues that if there were any agreement, it was void as violative of the controlling Statute of Frauds. It is conceded by all parties that the North Carolina law is controlling on these several contentions.

We find it necessary to consider only the contention based on the Statute of Frauds. The Findings of Fact in each case make it clear that any agreement between the plaintiffs and the defendant was within the North Carolina Statute of Frauds. That statute, unlike its counterpart in other jurisdictions where its scope is merely remedial, “affects the substance as well as the remedy.” Jamerson v. Logan (1948) 228 N.C. 540, 46 S.E.2d 561, 564, 15 A. L.R.2d 1325. On the basis of the present Findings of Fact in each ease, the statute would be a complete bar to a ruling that there was a valid contract or agreement between the plaintiffs, on the one hand, and the defendant, on the other. It is true, as the plaintiffs have argued, that in exceptional eases, courts of equity will find an estoppel against the enforcement of the statute but such an estoppel can arise in North Carolina only “upon grounds of fraud” on the part of him who relies on the statute. McKinley v. Hinnant (1955) 242 N.C. 245, 87 S.E.2d 568, 574. The District Court in neither case made a finding of “fraud” on the part of the defendant and, absent such finding, there can be no estoppel. Nor, on the facts in the record before us, would it appear that any such finding would have been in order. In United Merchants & Mfrs. v. South Carolina El. & G. Co. (D.C.S.C. 1953) 113 F.Supp. 257, 263, aff’d 4 Cir., 208 F.2d 685, it was stated:

“ ‘A mere failure or refusal to perform an oral contract, within the statute, is not such fraud, within the meaning of this rule, as will take the case out of the operation of the statute, and this is ordinarily true even though the other party has changed his position to his injury.’ ”

After all, as the District Court in one of the cases observed, the plight of the defendant was not substantially different from that of the plaintiffs. It was experiencing hardships which forced it to take action it obviously did not relish.

The claim of the plaintiffs is appealing and our sympathies are with them. As the District Courts indicated, it is equitable in periods of scarcity of basic materials for the Government to inaugurate a program of mandatory allocations of the materials. This, however, is a power to be exercised by the legislative branch of Government. The power of the Court extends only to the enforcement of valid contracts and does not comprehend the power to make mandatory allocations of scarce products on the basis of any consideration of the public interest. Public reports indicate that Congress is cognizant of the problem presented by these actions and is giving active consideration to the establishment of a program of mandatory allocations that would apply from the oil producer down to the oil retailer. It is earnestly hoped that Congress will take the necessary steps to establish such controls. For that control, however, the parties must look to the Congress and not to the Courts.

The District Courts were in clear error in finding on the record before them that there was the reasonable likelihood that the plaintiffs would prevail on the merits. For that reason, the granting of injunctive relief during the pendency of the actions was improper in both cases and the injunctions are hereby vacated.

Reversed. ■

BUTZNER, Circuit Judge, dissents.

      . The State Court clearly lacked jurisdiction of the action under the Sherman Act but, whether jurisdiction existed after and as result of removal to Federal Court, see Freeman v. Bee Machine Co. (1943) 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509.


source: Caselaw Access Project

author: BELL, Circuit Judge:

license: Public Domain

text:
    Birdie Mae DAVIS et al., Plaintiffs-Appellants, United States of America, etc., Plaintiff-Intervenor, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Defendants-Appellees, Twila Frazier et al., DefendantsIntervenors.
    No. 73-1603.
    United States Court of Appeals, Fifth Circuit.
    Aug. 27, 1973.

      J. U. Blaeksher, Mobile, Ala., Jack Greenberg, William Robinson, Norman Chachkin, New York City, for plaintiff s-appellants.
    Abram L. Phillips, Jr., Victor T. Hudson, Mobile, Ala., for defendants-appel-lees.
    C. S. White-Spunner, Jr., Mobile, Ala., Jerris Leonard, Asst. Atty. Gen., Dept, of Justice, Washington, D. €., for plaintiff-intervenor U. S.
    Samuel L. Stockman, Mobile, Ala., for intervenor Mobile County P.T.A.
    Ralph Kennamer, Pierre Pelham, Mobile, Ala., for intervenor Twila Frazer, and others.
    Solomon S. Seay, Jr., Montgomery, Ala., for intervenor N. E. A., and others.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   BELL, Circuit Judge:

This is the tenth appeal to this court arising out of the Mobile school desegregation case. , In addition, Mobile XI and XII are pending. Fortunately these appeals do not involve the student assignment problem. This problem was resolved on July 9, 1971 in a consent order incorporating “A Comprehensive Plan for a Unitary School System”, formulated by the parties. This consent order was entered after the reversal by the Supreme Court in Davis v. Board of School Commissioners of Mobile County, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L. Ed.2d 577, of Mobile IX. The litigation is now reduced to controversies over the location of one particular school building (this case — Mobile X); matters having to do with faculty assignment and tenure (Mobile XI), and a claim for attorneys’ fees (Mobile XII).

One provision of the “Comprehensive Plan” was that the following provision of Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F. 2d 121.1 (En banc), would be applicable to the Mobile System:

“All school construction, school consolidation, and site selection (including the location of any temporary classrooms) in the system shall be done in a manner which will prevent the recurrence of the dual school structure once this desegregation plan is implemented.” 419 F.2d at 1218.

The consent order of July 19, 1971 incorporating the “Comprehensive Plan”, also provided:

“The Court further retains jurisdiction to insure that future school construction and abandonment is not used and does not serve to perpetuate or reestablish the dual system”.

The “Comprehensive Plan” contemplated a new middle school to replace the George Hall school and required that the school board select a site for the school, subject to approval of the court:

“The system is in need of an additional middle school facility between the B.C. Rain and the Hall communities. The Board of School Commissioners will seek professional assistance with the involvement of the respective communities in order to bring forth for approval of the Court the selection of a site and the construction of a new middle school as rapidly as possible. Hall will remain open only during this interim period providing an opportunity for the planning and construction of this new facility to further implement the proposed plan and providing the opportunity for a greater degree of integration. The plaintiff will be advised as the school system moves in this direction under the continued jurisdiction of the District Court.”

In choosing a site location for the school in question, the school board received community in-put through a biracial committee composed of: (1) one representative from the faculty of -each of the two schools (Hall and B.C. Rain) selected by the respective faculties; (2) one representative from the student body of each of the two schools selected by the respective student bodies; (3) one representative from the PTA of each of the two schools selected by the respective PTA’s; (4) one representative from each of the two communities at large selected by the respective PTA’s; (5) two representatives from the Mobile Ministerial Association (a predominantly white organization), one having connection with each community, as selected by the Association; (6) two members from the Inter-Denominational Ministerial Alliance (a predominantly black organization), one having connection with each of the two communities, as seTeeted by the Alliance; (7) one member of the Court’s own Bi-Raeial Committee designated by the Court.

This bi-racial committee adopted the following goal in recommending sites:

To recommend, to the Board of Education, a site or sites which is/are as nearly centrally located, geographically, to the white and black communities as possible which will maximize desegregation in the George Hall School District.

Five criteria were employed by the committee:

(1) Site must be one that is as nearly centrally located (geographically) as possible to maximize desegregation.

(2) Site must be one that will afford equal accessibility and availability to both the black and white communities.

(3) Site must be one which has sufficient acreage to meet present standards for a Middle School.

(4) Site must be one which has sufficient acreage to allow for future expansion.

(5) Site must be one which has adequate street access.

The bi-racial committee then made the following recommendation as to sites:

First Choice — Cassie Lane property.

Second Choice — Frazier property.

Third Choice — Texas Street Urban Renewal school site.

Fourth Choice — Brookley Air Force Base.

Plaintiffs’ position here is that the Texas Street Urban Renewal site should have been selected rather than the Cassie Lane site. The bi-racial committee said of the Cassie Lane site:

“Located in residential area with some truck farms nearby. Near Brookley Field which is zoned light industrial thereby eliminating possibility of ever having heavy polluting industries nearby.”

As to the Texas Street site, thet committee reported:

“Near downtown area. Nearer industrial area with shipbuilding companies and National Gypsum just across Interstate 10.

Next the school board sought the advice of the University of Alabama College of Education Bureau of Education Services and Research. This group assigned three professional educators to the task. They centered on only the Cassie Lane and Texas Street sites and selected the Cassie Lane site with the following conclusions:

“The evaluation committee has studied the available data relevant to the two sites and the judgments of the Chairman who made the on-site visit. The following represents our best judgment for recommending that the Cassie Lane site be selected for the new Hall-Rain Middle School:
1. The welfare of the students would be better protected in an area with less traffic congestion, less noise, and lower pollution levels.
2. The prospect of developing an integrated community, in addition • to serving existing attendance areas, would be enhanced by locating the school in an area attractive to development. The existence of both an elementary and a new middle school in the B.C. Rain area should stimulate its development.
3. The selection of the Cassie Lane site for the new middle school would meet the Court-ordered criteria of '. . .a middle school facility between the B.C. Rain and the Hall community . . . which would provide opportunities for a greater degree of integration.’ The Texas Street site would violate that charge. We judge that the selection of the Texas Street site would tend to reseg-regate the schools. The Cassie Lane site offers the best opportunity to work toward integrated school and residential communities.

Next, the professional staff of the school board studied the question and recommended the Cassie Lane site.

The school board then petitioned the district court on November 16, 1972 for approval of a site, opting for the Cassie Lane location. Plaintiffs filed their objections to the location and an eviden-tiary hearing followed. The district court approved the Cassie Lane site and denied a stay. This appeal followed and we denied a stay on' April 5, 1973. We now affirm.

As stated, the “Comprehensive Plan” was entered by consent order following the reversal of our decision in Mobile IX, supra. In reversing the Supreme Court said:

“. . . the Court of Appeals felt constrained to treat the eastern part of metropolitan Mobile in isolation from the rest of the school system, and . . . inadequate consideration was given to the possible use of bus transportation and split zoning. . . .” 402 U.S. at 38, 91 S.Ct. at 1292.

The facts of this case point up the use of bus transportation and rezoning to integrate Hall and Eanes, two of the schools in the eastern part of Mobile.

Under the "Comprehensive Plan”, Hall and Eanes were the middle schools to serve about one-half of the geographical area of the city of Mobile. They were to serve the southern half of the city bounded generally on the North and West by Government Street, on the East by Mobile Bay, and on the South and West by Dog River and Halls Mill Creek. The combined enrollment at the two schools for 1972-73 was 2,526; 1335 white students and 1191 black. The new school, to be substituted for Hall which is to be closed, is projected to have 663 white and 506 black students. Eanes will have 1020 white and 500 black students.

The real and only issue is that if the school is located on the Cassie Lane property rather than the Texas Street site, 426 additional black students will have to be transported by bus. The Texas Street site is at the Northeastern tip of the large geographical area involved and in a predominately black neighborhood. Plaintiffs’ argument in essence is that they should be given a neighborhood school with an adequate percentage of whites to be transported in for integration purposes. Their theory is that the whites will be transported in any event and the extra travel involved is of only slight consideration.

This position is to be considered in the context of the total transportation of the two-school area:

Year School No. of Students Transported

1972-73 Hall W — 446 B-82

1972- 73 Eanes W-479 B-141-

1973- 74 New School W — 401 B — 491

Eanes W — 554 B-5

The total transportation picture for the area is that 925 white and 233 black students were transported in 1972-73 as compared to 955 white and 496 black students projected for 1973-74. Thus there will be a total of 273 additional black students transported in 1973-74 to the two schools in the area. It is true that bussing could be avoided for 426 black students by using the Texas Street site, 65 as compared to 491, but it would be necessary to bus 589 white students to the Texas Street site instead of 446 presently being bussed to Hall (401 projected for Cassie Lane).

As we see it, the net is that the Texas Street site would require 143 extra white students to be bussed when they are already being bussed in disproportionate numbers. The Cassie Lane site reduces the number of whites to be bussed by 45 but there is a projected increase at Eanes of 75. Thus the whites do not gain over the 1972-73 year. The black increase is because of closing a school nearer their home (Hall) and by not gaining the Texas Street site as a neighborhood school.

Although it is clear that white students are not gaining at the expense of blacks in the site selection, there are substantial factors which support the selection of the Cassie Lane site over the Texas Street site. One is that the distances of transportation are reduced by having the new school centrally located. Another is that the new site is in a sparsely populated area with room to expand into an interracial community. The new site is a racially neutral location and was selected, according to the testimony of the chairman of the bi-racial committee, to make the burden of bussing equal and to take the burden off of any one community. The 1972-73 student assignment plan for Hall and Eanes was temporary under the “Comprehensive Plan” pending the building of a new middle school and such revision of zones and transportation as might ensue therefrom.

This case is symbolic of the difficulty in selecting sites for public buildings. Controversies over the selection of such sites are not ordinarily justiciable but are left to the public offi-ciáis in charge. Wallis v. Blue, N.D.Ga., 1967, 263 F.Supp. 965, 970 (3 judge Dist.Ct.). Such questions are justiciable, however, in the context of racial discrimination. The scope of justiciabilityin school desegregation cases goes to questions of implementing the conversion of school systems from dual to unitary status, and to preventing the recurrence of the dual school structure. Singleton v. Jackson Municipal Separate School District, supra. Such questions also include preventing the imposition of the burden of desegregation on black students. See e. g., Mims v. Duval County School Board, 5 Cir., 1971, 447 F.2d 1330, Lee v. Macon County Board of Education, 5 Cir., 1971, 448 F.2d 746.

We conclude that plaintiffs have not made out a case of error with respect to either of these propositions. The district court did not err in rejecting (1) the claim of racial discrimination on the part of the school board in selecting the Cassie Lane site; (2) the claim that the school board employed unlawful racial considerations in evaluating the two sites' (Cassie Lane and Texas Street); and (3) the claim that the burden of desegregation was unlawfully imposed on black students.

Affirmed.

      . See Mobile IX, Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1970, 430 F.2d 883, 884, and fn. 1 thereto, for a list of the previous appeals.

      . The testimony adduced at the somewhat lengthy hearing in the district court in this case indicates that there is no uniformity of views amongst the plaintiff class. Counsel for plaintiffs conceded as much. In view of our decision on the merits, we do not reach any question as to whether the plaintiff class should have been divided into subclasses for the purpose of presenting the varying views on the question presented. This problem could have been avoided by a petition to intervene on behalf of named in-tervenors. Cf. Lee v. Macon County Board of Education (Conecuh County), 5 Cir., 1973, 482 F.2d 1253; Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762.
      The importance of the foregoing is seen in the fact that no attention was given in the hearing as to how the site selection problem in question may have related to the Mobile student assignment plan as a whole. Leading counsel for the plaintiff class in formulating the consent plan and order of July 9, 1971 did not join in the district court action nor has he joined in this appeal.

      . In Mobile, all students living more than two miles from a school are transported.


text:
    NATIONAL EDUCATION ASSOCIATION et al., etc., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, ALABAMA, et al., etc., Defendants-Appellees.
    No. 73-2514.
    United States Court of Appeals, Fifth Circuit.
    Aug. 27, 1973.
    Solomon S. Seay, Jr., Montgomery, Ala., for plaintiffs-appellants.
    Abram L. Phillips, Jr., Mobile, Ala., for defendants-appellees.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   BELL, Circuit Judge:

This appeal arises out of the Mobile School desegregation case. It presents the effort of the NEA to superimpose a class action upon a pending class action.

The NEA utilized the strategy of joining with two teachers who were seeking employment in the Mobile system in bringing the action. The two teachers premised their complaint on the claim that they had teacher certificates granted by the state and were refused employment as teachers in the Mobile system although there were 69 teachers in the system with only provisional certificates. (69 out of a total of 2,559 teachers). No racial discrimination was alleged as a part of their claim. They sought a mandatory injunction to compel their employment. They were later employed as teachers in the system and the district court dismissed their complaint but with the right to amend within 15 days to seek damages or other relief. They filed no amendment, the complaint was then dismissed as to them and the NEA, and this appeal followed. As was true in the district court, they and the NEA are represented here by the same law firm. We have searched the brief, filed jointly on behalf of the teachers and the NEA, in vain for any assignment of error whatever as to the ruling with respect to the individual claims of these teachers. The part of the order of the district court dismissing as to them is therefore affirmed, and we turn to the claim of the NEA.

In the first place, we must have in mind that NEA has petitioned to intervene in the pending class action involving the Mobile school system and that petition is presently before the district court. We have recently held that the proper and orderly procedure to be followed by third parties in seeking to enter pending school cases is by a petition to intervene. See Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762; Lee v. Macon County Board of Education (Conecuh County), 5 Cir., 1973, 482 F.2d 1253. This is all the more important in this ease which is now in its second decade in the federal courts. Following reversal of this court in Mobile IX by the Supreme Court in Davis v. Board of School Commissioners of Mobile County, 1971, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577, the parties formulated and implemented by consent order a “Comprehensive Plan for a Unitary School System”. That plan was quite specific as to the rights of faculty and staff members in the context of desegregation and racial discrimination. The plan and consent order adopted the uniform requirements of Singleton v. Jackson Municipal Separate School District, 5 Cir., 1970, 419 F.2d 1211 (En banc), with respect to such matters. The district court retained and has continuing jurisdiction over faculty and staff assignments; indeed, over every matter which the NEA attempts to assert in its own class action.

Without naming or purporting to represent any particular individual complainant, whether a member of the NEA or otherwise, the NEA seeks to restrain defendants from “ . . . continuing to demote and/or dismiss black principals, assistant principals, band directors, ' athletic coaches and other black teachers solely by reason of race or color and without the application of non-racial objective criteria.” Reinstatement and back pay was sought for all black personnel who had suffered this alleged treatment. It was also alleged that many persons holding the positions in question were members of the NEA. The two teacher plaintiffs were not said to be representative of the class to the specific extent of the contended unlawful treatment.

Thereafter, the NEA commenced wide ranging discovery proceedings and the district court, at the request of defendants, set the matter for hearing on the motion of defendants to dismiss. Pointing to the continuing jurisdiction of the court over the main class action and the injunction entered thereunder, and to the facts that the injunction covered all matters asserted by the NEA, and that not a single complaint had been filed with the court alleging a violation of the injunction, the court dismissed the complaint. We might add that at no time did the NEA offer the name of a single victim of the alleged violative and unlawful practices of the school board.

We pretermit any question as to requiring litigation to be brought in the name of the real party or parties in interest. Rule # 17, P.R.Civ.Proeedure. Nor are we concerned with a petition to intervene. Lee v. Macon County Board of Education (Conecuh County), supra; Hines v. Rapides Parish School Board, supra. We turn, instead, to the question of standing. See Smith v. Board of Education of Morrilton School District, 8 Cir., 1966, 365 F.2d 770, for a statement of reasons to allow such an action to be brought by a Teacher Association on behalf of teachers. None of the reasons there, fear on the part of teachers to assert complaints, possible loss of interest in litigation on part of teachers after other employment obtained, right of students to integrated faculty (undisputa-bly fully integrated here), loss of membership and financial support, are alleged here. From our long experience with and knowledge of the Mobile system, we can understand why. It would be difficult if not impossible to offer proof in support of such reasons. In addition, in Smith, there was no extant final injunction embracing the very matters alleged, as here, to constitute a new class action.

The burden on a third party to superimpose a class action on a pending class action which is in its final stages is a heavy one. We hold that it was not met here.

The claim made in the brief by plaintiffs that the plaintiff class in Davis has not protected the rights of the black teachers .and staff in the Mobile system is rejected. The plaintiff class in Davis is represented by several Mobile lawyers and the NAACP Legal Defense Fund, Inc. The plaintiff class itself is representative of many groups of blacks in Mobile. It is apparent that complaints, if there are complaints, with respect to violations of the “Comprehensive Plan” and the injunctive order of the court entered pursuant thereto, could have been and may now be asserted without hindrance or let.

Affirmed.

      . This is Mobile XI. See Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1973, 483 F.2d 1017, for reference to former appeals.


author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Daniel BETHEA, Jr., Appellant.
    No. 72-2409.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1973.
    Decided Aug. 29, 1973.

      J. David James, Greensboro, N. C. (Smith, Patterson, Follín & Curtis, Greensboro, N. C., on brief), for appellant.
    William L. Osteen, U. S. Atty., for ap-pellee.
    Before WINTER and FIELD, Circuit Judges, and BLAIR, District Judge.
   FIELD, Circuit Judge:

This appeal arises from the conviction of Daniel Bethea, Jr., of violation of the Military Selective Service Act of 1967, 50 App. U.S.C. § 462. Appellant was charged in a three count indictment with failure to report for induction into the military service, failure to keep his Local Draft Board advised of his current address, and failure to report for an armed forces physical examination. Tried to a jury on October 2, 1972, a verdict of guilty was returned on all three counts. The counts were consolidated for sentencing, and appellant was sentenced to thirty months imprisonment.

Bethea’s Selective Service file disclosed that he registered with his Local Board on September 27, 1968, at which time he gave his mailing address as 1321 Ardmore Drive, Greensboro, North Carolina. In July of 1969 a Current Information Questionnaire was mailed to him at that address but was not returned to the Board and on December 2, 1969, the Board declared him delinquent and classified him 1-A. A notice of delinquency and reclassification was mailed to Be-thea and, receiving no response thereto, on January 19, 1970, Bethea was ordered to report for induction on February 9th of that year. However, in the light of the Supreme Court’s decision in Gut-knecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), the Board rescinded its action, cancelled Be-thea’s order to report for induction, and once again classified him 1-A. Notification and a new draft card were mailed to him at the address on Ardmore Drive. On July 2, 1970, the Board mailed to the appellant an order to report for a physical examination on July 16, 1970, but he failed to report on that date. Thereafter, on September 25, 1970, he was mailed an order to report for induction on October 15, 1970, but failed to report in response thereto. None of the various notices mailed to Bethea at the Ard-more Drive address were returned to the Local Draft Board.

On appeal Bethea assigns numerous errors by the trial court as grounds for reversal. However, we need discuss only three of the issues presented by appellant :

(1) Whether the trial court erred in denying appellant’s motion to dismiss all charges on the basis of an alleged breach of an agreement between appellant’s counsel and the United States Attorney.

(2) Whether the order to report for induction issued by the Greensboro, North Carolina, Local Draft Board on September 25, 1970, was authorized by the regulations then in effect.

(3) Whether the contradiction, if any, between the jury’s verdict on counts one and three of the indictment and its verdict on count two of the indictment requires reversal of appellant’s convictions on any or all counts.

I

Appellant’s first assignment of error is the trial court’s refusal to dismiss all charges on the basis of the breach of an alleged agreement between appellant’s original attorney and the United States Attorney. That agreement was to the effect that the United States Attorney would recommend dismissal of the case to the trial judge if appellant submitted himself for induction. The same recommendation would be made if the appellant failed to pass the physical examination because of a physical condition which was in existence prior to the date he was first ordered to report for induction. Appellant submitted himself for induction and passed the physical examination. The Army, however, refused to induct him upon moral grounds stemming from three misdemeanor convictions, all of which antedated his first order to report for induction. Under these circumstances the United States Attorney refused to recommend dismissal.

At the hearing on the motion to dismiss, appellant’s original counsel testified that at the time of his agreement with the United States Attorney he did not know of tjje possibility of a moral disqualification. He testified further that no negotiations had taken place in regard to any plea by Bethea. The district judge ruled that even if the United States Attorney’s promises were construed to include a promise to recommend dismissal if appellant was rejected for any reason, the court would not grant the motion to dismiss. His refusal was based primarily upon the absence of a plea which would be necessary to bring into play the holding of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), as well as his own discretionary power.

Appellant argues that the agreement, read in view of the reasonable expectations of the parties, should be construed to mean that the United States Attorney would recommend dismissal of the case if appellant was rejected on any grounds which antedated his original order to report and that such an agreement is enforceable under the principle of Santo-bello. The United States Attorney contends that the agreement should be narrowly construed, that Santobello does not apply to this case in the absence of a plea, and that in any event the trial judge’s refusal to dismiss on discretionary grounds renders harmless any failure to perform the agreement. Appellant argues that the failure to perform could not be harmless in view of the trial judge’s consistent record of accepting recommendations by the United States Attorney.

We need not engage in an elaborate examination of the terms of the understanding between appellant’s counsel and the United States Attorney, or of the impact on the trial judge of the government’s decision not to recommend dismissal since we do not consider this an agreement enforceable under Santobello. The concern of Santobello was to protect a defendant who by pleading guilty has surrendered valuable constitutional rights in exchange for the prosecution’s assurances. That concern has no application to the facts of this case. Appellant’s submission for induction surrendered none of the rights protected by Santobello. In the context of this case, Bethea’s conduct was at most only a factor to be considered by the prosecutor in deciding whether or not to prosecute, a decision not reviewable here.

II

Unfortunately, the specific regulation in effect on the date of Bethea’s order for induction was not introduced at the trial, and neither the United States Attorney nor defense counsel appeared to have definitive knowledge with respect thereto. Instead, the Secretary of the Local Board was permitted to testify without objection that the language of 32 C.F.R. § 1631.6, which was in effect at the time of the trial was contained in the pertinent regulation which was operative on the date of Bethea’s induction order. 32 C.F.R. § 1631.6 provides in part as follows:

“when a registrant in whatever classification has refused or otherwise failed to comply with an order of his local board to report for and submit to an Armed Forces examination, he may, after he is reclassified into Class 1-A or 1-A-O be selected and ordered to report for induction even though he has not been found acceptable for service in the Armed Forces and a Statement of Acceptability (DD Form 62) has not been mailed to him.”

This language of the regulation clearly authorizes an order of induction for any registrant who, like Bethea, has failed to comply with an order to report for a physical examination, and if such language was contained in the regulation which was in effect on September 25, 1970, Bethea’s order of induction was facially valid.

Counsel failed to present to us either in their briefs or in oral argument a copy of the regulation which was in effect on the operative date, but our examination of the history of the regulation reveals that no less than four versions of 32 C.F.R. § 1631.6 (formerly 32 C.F.R. § 1631.7) were promulgated between October 1967 and December 1971. The relatively frequent revisions of these regulations during that period may explain the confusion as to which regulation was in effect on any given date, but the district court should have insisted that the operative regulation be introduced at the trial. In a case with potentially severe consequences to the defendant precision in this respect is vital. It is clear that local draft boards must act pursuant to specific authority, United States v. Machado, 306 F.Supp. 995 (N.D.Cal.1969), and a party cannot be prosecuted for disobedience of an invalid order, United States v. Reeves, 325 F.Supp. 179 (M.D.Fla.1971). It is elementary, too, that if an order is invalid on the date of issuance it cannot be rendered valid by subsequent revisions of either the law or the regulations.

A review of the present regulation and its predecessors indicates that the regulation subsequently declared unlawful by the Supreme Court in Gutknecht v. United States, supra, took effect on October 16, 1967. This regulation, 32 C.F.R. § 1631.7, authorized a local board to fill a call from registrants who had been classified 1-A or 1-A-O and had been found to be acceptable for service and to whom a Statement of Acceptability (DD Form 62) had been mailed at least twenty-one days before the date fixed for induction. This regulation also contained the provision condemned in Gutknecht authorizing the induction of delinquents despite the fact that they had not previously been found acceptable for military service. The regulation was revised, effective December 1, 1969, before Gutknecht was decided, and contained the same provision with respect to the induction of the normal class of registrants, as well as the provision with respect to the accelerated induction of delinquents. This revision, however, contained an additional provision that any registrant in Class 1-A or 1-A-O

“whose random sequence number has been reached, and who would have been ordered to report for induction except for delays due to a pending personal appearance, appeal, preinduction examination, reclassification, or otherwise, shall if and when found acceptable and when such delay is concluded, be ordered to report for induction next after delinquents and volunteers,” (emphasis added).

It should be noted that this new provision, designed to penalize what the Selective Service viewed as dilatory tactics, did not dispense with the requirement that non-volunteers and non-delinquents be found acceptable for military service prior to any order to report for induction. This was the regulation which was in effect on September 25, 1970, the date on which Bethea’s order for induction was issued.

On September 26, 1970, one day after the issuance of Bethea’s order, 32 C.F.R. § 1631.7 was again revised. This revision retained the same provision with respect to the induction of normal registrants, deleted the provision with respect to the accelerated induction of delinquents, and for the first time authorized the issuance of orders to report for induction to registrants who “failed to comply with an order of his Local Board to report for and submit to an Armed Forces physical examination * -a- -x- even though he has not been found acceptable for service in the Armed Forces and a Statement of Acceptability (DD Form 62) has not been mailed to him.” This revised regulation was obviously promulgated in response to the decision in Gutknecht. The current regulation which carries the designation 32 C.F.R. § 1631.6 and became effective in December 1971 is identical in all relevant parts to the 1970 revision.

From this review it is clear that the court below erred in trying Bethea upon the assumption that his order of induction was issued pursuant to a regulation substantially the same as the one in effect at the time of trial. It is equally clear that the order directing Bethea to report for induction issued by the Local Board on September 25, 1970, was invalid. Appellant had not been found to be acceptable for service in the Armed Forces on that date and the regulation then in effect clearly required a finding of acceptability prior to the issuance of an order to report for induction. It goes without saying that the delinquency exception to this requirement of the regulation was nullified by Gutknecht and the only remaining exception with respect to volunteers has no application to this case.

It is, of course, paradoxical that Bethea should escape responsibility for refusing to report for induction as a result of his nonfeasance in failing to report for a preinduction physical. This anomaly was recognized in United States v. McClintock, 311 F.Supp. 1119 (N.D.Cal.1970), but the court concluded at page 1121:

“The fact that there is presently no provision for inducting, rather than prosecuting, registrants who fail to take a physical examination is of course a product of the Gutknecht and Breen [Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653] decisions. Prior to those decisions such individuals were ordered to report for induction as delinquents under the first proviso of 32 C.F.R. § 1631.7(a) which allowed for induction without the finding of acceptability or the mailing of a DD 62. The Court cannot supply such regulations and in their absence is forced to conclude that the presently valid portion of § 1631.7 was not complied with, that strict compliance with the order of call regulation is mandatory, United States v. Baker, 416 F.2d 202 (9th Cir. 1969), and therefore that the order to report was invalid.”

We find the conclusion reached in Mc-Clintock to be inescapable, and since Be-thea’s order for induction was invalid his conviction on the first count of the indictment must be reversed.

Ill

The asserted contradiction between the jury’s verdict on count two of the indictment, failure to keep the Board advised of his current address, and the verdict on counts one and three, failure to report for induction and failure to report for an Armed Forces examination can only be appraised in light of the law defining those duties and the circumstances necessary to support a guilty verdict. It is established that in order to fulfill the registrant’s duty to keep the local board advised of a current address, he need only provide the board with an address which is the beginning of a chain from which the registrant may reasonably expect to receive communications from the board. Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943); United States v. Ebey, 424 F.2d 376 (10 Cir. 1970). Appellant testified that he left instructions with his mother that any mail received at his North Carolina address was to be forwarded to his aunt in Boston, Massachusetts, where appellant resided for a time and thereafter visited periodically. If believed by the jury, this testimony provided a defense to count two.

It is equally well established that in order to sustain a conviction on counts one and three, the government must show that the appellant had actual notice of the orders to report. United States v. Williams, 421 F.2d 600 (10 Cir. 1970); United States v. Rabb, 394 F.2d 230 (3 Cir. 1968). In the present case the government attempted to prove actual notice by introducing evidence that the orders to report were mailed to appellant’s North Carolina address, buttressed by the rebuttable presumption that mail properly addressed is timely received. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Karnap, 477 F.2d 390 (4 Cir. 1973).

The contradiction lies in the fact that if appellant did in fact receive the orders to report by means of the chain of addresses he had created, while he may have been guilty of failure to report, he cannot possibly be held to have failed in his duty to keep his board advised of his address. Similarly, if one assumes that appellant did not provide a good chain of addresses, as charged in count two, the presumption supporting receipt of the orders to report dissolves, and the government must show actual notice by some other means. It appears that in the present case the government relied exclusively on the presumption.

Under the circumstances, it is clear that the verdict on counts one and three and the verdict on count two were contradictory. The question remaining is whether this contradiction is fatal to the jury’s verdict on any or all of the counts. The government relies upon United States v. Flowers, 255 F.Supp. 485 (E.D.N.C.1966), for the proposition that “it is settled beyond cavil in the Federal courts that verdicts on different counts of a single indictment returned by the same jury at the same time are valid even though they may be logically inconsistent.” This language in Flowers was based upon the holding of the Supreme Court in-Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that a jury verdict of guilty on one count, was not rendered void by the same jury’s acquittal on a second count although the identical evidence logically supported convictions on both counts. The court reasoned that the jury had apparently assumed the power to ignore the court’s instructions and the clear evidence of guilt on the seeon’d count in order to exercise a measure of lenity. In United States v. Maybury, 274 F.2d 899 (2 Cir. 1960), the court, refusing to extend the Dunn rule to a case which was tried to the court, emphasized the role of the jury in our system of justice. “The vogue for repetitious multiple count indictments may well produce an increase in seemingly inconsistent jury verdicts, where in fact the jury is using its power to prevent the punishment from getting too far out of line with the crime.” Id. at 902.

Here, appellant’s guilt or innocence on all counts depended upon the jury’s resolution of one factual question — was the North Carolina address to which the orders were sent a “good” address? If it was “good” conviction on count two was impossible; if it was not “good” conviction on counts one and three was impossible. Assuredly, conviction on all three counts was not logically possible. This is a sharply' contrasting situation from that in Dunn v. United States, supra, where both the evidence and logic dictated that the defendant, charged with unlawful possession of intoxicating liquor and sale of the same, was guilty of both of the offenses or none. The rationale of Dunn has no application to this case. That rule, justified as a check on the “excessive zeal of prosecutors,” United States v. Maybury, supra, 274 F.2d at 903, should not be converted into an inflexible shield for the overzealous and irrational behavior of a jury.

Having determined that appellant’s conviction cannot stand on all counts, the question arises as to which, if any, of the convictions should be permitted to stand. In Thomas v. United States, 314 F.2d 936 (5 Cir. 1963), a jury conviction on a two count indictment was reversed where one of the counts was predicated on .the smuggled drug having originated in the United States, while the other count was predicated on the smuggled drug having been acquired outside the United States. In that case the court struck down only the count which relied upon the drug’s origination in the United States, since the evidence was overwhelmingly clear that the drug was obtained outside the United States, the defendant having been apprehended when he attempted to pass through customs.

However, in order for us to allow one of the convictions in the present case to stand, we would have to determine that the evidence on one count was so clear as to leave no reasonable doubt about appellant’s guilt on that count rather than the others. The jury’s resolution of this problem obviously is of no aid to us. Other than the evidence that the orders were mailed, the most significant evidence in support of the government’s case was the testimony of the F.B.I. agent who arrested the appellant. The agent testified that at the time of his arrest Bethea stated: “Well, I never received any notice. I probably attribute that to the fact that I never notified the Board of where I’m living, and I’ve been living in various places throughout the Boston area.” Appellant took the stand and denied having made the statement ascribed to him, and also testified as to the instructions he had left with his mother regarding the forwarding of his mail. Thus, it is clear that the factual determinations of the jury rested on the credibility of the witnesses, and it would be inappropriate for us to attempt to determine at this distance which witness was telling the truth. This situation is clearly distinguishable from United States v. Thomas, supra, where uncontested facts were the basis of the appellate court’s affirmance on one count.

Accordingly, we must reverse Bethea’s convictions on all counts. Because of our disposition of count one in Section II of this opinion, the trial court will on remand dismiss the case as to that count. Upon a new trial on counts two and three, the trial judge will instruct the jury that conviction on one count will bar conviction on the other unless the government can demonstrate by some means other than the mail that appellant received actual notice of the order to report for a physical examination.

Reversed and remanded.


author: GEWIN, Circuit Judge. COLEMAN, Circuit Judge

text:
    Robert V. BRUCE, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-2641.
    United States Court of Appeals, Fifth Circuit.
    Sept. 6, 1973.

      Michael Anthony Maness, ' court-appointed, Houston, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Lonny Zwie-ner, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   GEWIN, Circuit Judge.

In this case, we are once again confronted with the difficult task of reviewing the question whether a state prisoner is entitled to a writ of habeas corpus because of his alleged incompetence to assert an intelligent and meaningful defense during his trial. The record discloses an unusual and bizarre factual background. We do not lightly undertake our responsibility because it was a fundamental precept at common law, and more recently a constitutional mandate that one who is incompetent cannot be criminally prosecuted.

Robert Bruce, a state prisoner appeals from the denial of his petition for the writ of habeas corpus by the district court. On November 2, 1965, Bruce was convicted of the murder of his wife and the jury imposed a sentence of life imprisonment. His conviction was affirmed on direct appeal. His subsequent application for a writ of habeas corpus to the Texas Court of Criminal Appeals was denied without a hearing. Thereafter on December 6, 1966, he filed a petition for the writ of habeas corpus in the United States District Court for the Northern District of Texas which denied the writ. On appeal, we vacated and remanded the case with instructions to dismiss the writ without prejudice to Bruce so he could reapply for relief in the state court in which he was convicted

Accordingly, Bruce sought relief from the state convicting court. The state court empaneled a jury and after a full hearing in which extensive testimony was presented, the jury returned a verdict that Bruce had been competent to stand trial in 1965 for the murder of his wife. Adopting the findings of the jury, the state court denied relief on September 26, 1969. On appeal the Texas Criminal Court of Appeals affirmed without opinion and Bruce instituted the instant petition in the United States District Court. The United States District Court concluded that the competency issue was fairly resolved by the state court and dismissed the petition. After a careful review of the state court record, we remand to the district court for further proceedings consistent with this opinion.

I

In order to place this case in proper perspective it is necessary to set forth a detailed statement of the undisputed facts. As earlier indicated, the facts are bizarre, novel and most unusual. During the Christmas season, specifically on December 22, 1964, Bruce killed his wife, the mother of his three children, by shooting her with a pistol. After his arrest and while in the Dallas County Jail Bruce attempted to take his own life. It is now admitted that the record supports the conclusion that he was sane at the time of the homicide.

Shortly thereafter, on January 12, 1965, a grand jury was convened to investigate the case. Private counsel was retained and Bruce was examined by two psychiatrists, Dr. Pickard and Dr. Holbrook. On February 26 they pronounced him insane and classified his mental disease as “Paranoid Personality Disorder, Severe, Chronic.” On March 1, 1965 the grand jury no-billed the case and Bruce was held for a lunacy commitment. Two days later, the Probate Court of Dallas County concluded that Bruce was insane and “ordered, adjudged and decreed that (Bruce) is hereby adjudged mentally ill and requires observation and/or treatment in a mental hospital for his own welfare and protection or the protection of others,” and ordered him involuntarily committed to Terrell State Hospital, an institution for the treatment of the mentally ill. There is nothing in the record to indicate that this determination has ever been set aside.

Soon after his admission, Bruce, aided by counsel, obtained a release from the hospital by “Doctor” Reid Brown, alias Freddie Brant, who was subsequently determined to be an imposter and was convicted of perjury and practicing medicine without a recorded license. He was given a sentence of five years under the perjury charge. On May 6, 1965 Bruce voluntarily committed himself to Terrell State Hospital but later escaped. The authorities were advised that he was no longer confined to the hospital and on May 24 a grand jury indicted him for the murder of his wife.

Counsel who had served Bruce to this point, Mr. McNicholas, was dismissed apparently because he insisted that Bruce should enter a plea of insanity in defense of the charge against him. Another attorney, Mr. Snodgrass, was employed with the apparent understanding that both the father and Bruce would not permit an insanity plea because it was felt that such a plea “would reflect on his children.” He was convicted of murder with malice on September 21, 1965 and on October 28 of that year sentenced to life imprisonment.

At the state court post-conviction hearing to determine whether Bruce was competent to stand trial several witnesses appeared. Attorney Snodgrass who represented Bruce at his murder trial strongly indicated that he was instructed not to use the defense of insanity. Although Mr. Snodgrass “believed” that Bruce was able to communicate with him and assist in his defense, he did state that on two different occasions during the trial Bruce became emotional and erratic and for a short period each time Mr. Snodgrass felt that he was not competent to assist him. There was some testimony that on these occasions the trial judge threatened to bind and gag Bruce if he persisted in emotional outbursts. The state supported its contention of competency with the testimony of only one other witness, Dr. Grig-son. Dr. Grigson testified that he interviewed Bruce for one hour in the Dallas County Jail on February 4, 1969 and concluded from that interview and an examination of records that Bruce was competent to stand trial in September, 1965.’

Dr. Hugh Brown (not to be confused with Reid Brown), a physician and former superintendent at Terrell State Hospital, interviewed Bruce on two different occasions in April and September 1969. He also had access to the hospital records which he studied and analyzed. It was his professional opinion that Bruce was not competent at the time of his murder trial. Dr. Tauber, another physician employed at Terrell State Hospital, examined Bruce physically and neurologically over a period of six weeks beginning in February 1969. He saw Bruce daily during that period. Dr. Talbot, a consulting psychologist at Terrell State Hospital, administered five psychological tests to Bruce. Dr. Tauber conferred with Dr. Talbot and also examined the records and the treatment administered to Bruce while he was a patient at the hospital. It was Dr. Tauber’s conclusion that Bruce was not mentally competent to stand trial in September 1965 when the trial was conducted. Attorney McNicholas expressed the opinion that Bruce was unable to effectively communicate with him and was incompetent to assist in a criminal proceeding during the time he served as Bruce’s attorney. Bruce’s father described a long history of aberrational behavior commencing in early childhood and continuing throughout his adult life.

The medical records of the Marine Corps reflect that Bruce experienced rather severe emotional trouble while he served as an enlisted man. At one time while he was drinking he seized a rifle and commandeered the barracks where a number of marines were quartered. He was finally subdued by six other marines and the record indicates that it required six fellow marines to transport him to the hospital.

After presentation of all the evidence, the jury returned a verdict concluding that Bruce was competent to stand trial in 1965. The state court adopted the findings of the jury and denied relief. The district court reviewed the record of the state court proceedings and concluded that Bruce had been given a full and fair hearing on the issue of insanity, and the evidence adduced at the state proceeding supported the conclusion that Bruce had been sane and fully capable of standing trial in 1965. We now review the correctness of these conclusions.

II

Our analysis commences with the elementary observation that the conviction of an accused while he is legally incompetent violates due process. The contours of this fundamental right were delineated by the Supreme Court in Dusky v. United States, where the Court held that the test for determining mental competency to stand trial is:

whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

As is often the case, however, the legal principle is explicated with an ease not present when procedures are attempted to effectuate the right thus recognized. This problem is further accentuated when one attempts to present a competency challenge long after the trial as in the instant case.

This court has attempted to provide a meaningful procedure for determining competency to stand trial in a subsequent post-conviction hearing. We have recognized that such defenses should normally be presented at the trial itself. Nonetheless, the Supreme Court has held that,

[I] t is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently “waive” his right to have the court determine his capacity to stand trial.

Thus any attempt to argue that an incompetent defendant has waived his right to assert incompetency to' stand trial in a post-conviction proceeding will generally fail. If a defendant can present sufficient objective evidence following his trial which necessitates a hearing to determine whether he was competent at trial, it follows naturally that he has presented enough evidence to overcome any waiver argument presented by the government.

We have previously enunciated the proper procedure for a district court in this circuit to follow when an incarcerated felon attempts by a writ of habeas corpus to prove that he was incompetent at the time of trial as follows:

. when a prisoner, either state or federal, seeking post-conviction relief, asserts, with substantial facts to back up his allegation, that at the time of trial he was not mentally competent to stand trial, and that there was no resolution of that precise issue before he was tried, convicted and sentenced, the protection of the Fourteenth Amendment to the Constitution requires that such conviction and sentence be set aside unless upon adequate hearing it is shown that he was mentally competent to stand trial. it will be the duty of the trial court ... to decide whether it can conduct an adequate hearing on the question of [the prisoner’s] competency to stand trial .... If it cannot, it will be under the obligation to set aside the judgment of conviction and remand the case to the state courts for a new trial at which time it will, of course, be open to [the prisoner] to have an adequate hearing on his then mental capacity to stand trial.

In sum, the district court must determine whether a meaningful hearing can be conducted at all. If this threshold issue can be answered in the affirmative, then a hearing should ensue at which time both sides can present evidence on the ultimate issue of competency to stand trial.

Ill

We feel that only two issues raised by petitioner need be resolved for a proper disposition of this case. First, on the basis of the record before us, can it be concluded that a meaningful determination nunc pro tunc of Bruce’s competency to stand trial may be accorded him? Second, assuming that such a hearing could be conducted, does the record of the state proceedings support the conclusion that Bruce was afforded such a meaningful hearing? It is our considered opinion that even though a meaningful hearing might have been conducted to determine Bruce’s prior competency to stand trial, the events and circumstances surrounding the state hearing were of such a nature that the meaningfulness of that proceeding was completely vitiated. We are thus compelled to remand to the district court for a full, fair and hopefully final hearing on petitioner’s competency to stand trial for the murder of his wife in 1965.

Since the district court fully approved the critical facts found in the state proceedings we are essentially reviewing the state court’s determinations. In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court articulated the standards to be applied by a federal district court in deciding whether a de novo hearing should be granted to state habeas corpus petitioners. The Court held that a new hearing must be granted if “for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” Thus, it is the duty of a federal court to initially review the state court proceedings for the purpose of resolving whether they were conducted in a manner to fairly- adduce the facts surrounding a petitioner’s claims

Under the unusual facts and circumstances disclosed by the record of the state court proceedings we cannot escape the conclusion that the district court erred in this regard. We limit our decision to such facts and circumstances. Since the lower court in effect adopted the findings of the state habeas proceeding, it implicitly held that the procedures there employed were consistent with a fair and full ascertainment of the facts. Our review of the state proceeding leads us to the opposite conclusion. There are several reasons for our conclusion that the state proceeding did not meet the requisite standard of a full and meaningful hearing. Although each surrounding factor might not be sufficient when viewed in isolation, when the state record is scrutinized as a whole, the inherent prejudicial impact of the state proceeding is given full significance.

A. Confusion of the Issues

Bruce was given a hearing before the state court on September 24, 1969. The court empaneled a jury to determine the contested issues of fact. In this proceeding, however, the jury was required to resolve three controverted factual issues: first, Bruce’s criminal responsibility for the murder of his wife in 1964; second, his mental competency to stand trial in 1965; third, his mental competency during the pending hearing. Thus the jury’s assignment was not an easy one considering the fact that it had to resolve conflicting lay and expert testimony on three distinct mental faculties of Bruce both in time and circumstance.

Moreover, the state court record reveals that these distinct issues were not kept separate and were often intermixed which must have resulted in confusion in the minds of the jurors. Both criminal responsibility and mental competency to stand trial involve issues of one’s perception of his surrounding environment, his ability to relate to that environment, and his reactions to what is perceived. The cases and authorities have repeatedly noted that when questioning lay or expert witnesses concerning an individual’s mental competency to stand trial, the questioner should be exact in his examination in order that the proper light may be shed on the crucial factors which compose an intelligent competency determination.

Any resolution of a factual controversy requires evidence and testimony which is both material and relevant to the contested issues. When dealing with a competency issue the trier of fact needs evidence on a petitioner’s “present ability to consult with his lawyer with a reasonable degree of rational understanding” and on “whether he has a rational as well as factual understanding of the proceedings against him.” At the state proceeding, the interrogation was so ambivalent and equivocal on the issue of competency, that any determination of Bruce’s competency was meaningless.

B. Prejudicial Comments

Conflicting expert and lay testimony was presented at the state hearing. Drs. Hugh Brown and Tauber concluded that Bruce was “insane” at the time of his state trial, while Dr. Grigson concluded that he was “sane.” Attorney McNicholas felt that Bruce was “insane” and attempted to assert such a defense for his former client while Attorney Snodgrass was convinced that Bruce had been “sane.” The only evidence to the contrary was the testimony of Attorney Snodgrass, who served under limiting instructions from Bruce's father and the opinion of Dr. Grigson who spent only one hour with Bruce while in jail.

In view of the nature of the evidence, a serious factor which accentuated the potential for unfairness was the highly inflammatory and prejudicial comments of the state counsel’s closing arguments to the jury. In rhetoric reminiscent of a television drama state counsel warned the jury that:

I suggest right now he’s [Bruce] thinking, he knows that they have already said he was sane in ’64 already said sane now, you find him insane at the time of his trial, he goes free. That’s what he knows, because you can’t incarcerate in a mental hospital a sane man. I think he knows that he can’t be tried again. I think he knows the memories have faded and the evidence has dissipated in the intervening four years.

That’s what I think he knows. It’s a very clever attempt to put something over on you as jurors to where he gets out of prison after having done life, [sic] been given a life sentence in Dallas County for the crime of murder with malice.

This is your county. You can do what you want to. You’re the arbiters of what goes on in this county. If you want him walking the streets of your county, you go ahead and let him out; find him insane at the time of his trial and you will have effectively let him out of prison. That’s what you are facing in your decision in this trial. [Emphasis added]

Such emotional, erroneous and prejudicial comments have no place in a dispassionate resolution of the question whether Bruce was competent in 1965 to stand trial.

These comments most probably infected the whole decision-making process of the jury. State counsel knew that Bruce could be retried and his assertion to the jury that he could not was erroneous. Such irrelevant diatribes cannot be countenanced.

We are mindful of the fact that federal courts do not sit as courts of errors and appeals when a state prisoner seeks federal habeas corpus. At the same time, we cannot ignore our responsibility to insure that an accused obtains a fair trial by an impartial jury. As the Supreme Court has reiterated time and again, “[e]xercise of calm and informed judgment by . . . [a jury’s] members is essential to proper enforcement of law.” Highly prejudicial remarks uttered by the prosecutor jeopardize the jury’s deliberative processes and hence infringe upon an accused’s right to a fair hearing on the merits of the case.

C. Improper Standard

Finally, and perhaps most important of all, there is another reason why this case must be remanded to the United States District Court for an appropriate hearing. The jury instructions given by the state habeas court at the state post-conviction hearing were brief, and although somewhat ambiguous, seem to indicate that the M’Naghten rule v/as the controlling standard to determine competency to stand trial. It is not necessary for us to reach the question whether the State of Texas should or should not use the M’Naghten rule to determine criminal responsibility at the time of the alleged crime. Apparently such was the Texas rule at the time of the post-conviction hearing in September 1969. However, we are firm in the conclusion that the M’Naghten rule cannot be used as a standard to determine competency to stand trial. Again we emphasize that the appropriate standard required by the federal constitution is set forth with simple clarity in Dusky v. United States, supra:

. whether he [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.

362 U.S. at 402, 80 S.Ct. at 789. Our conclusion is buttressed by obvious doubts and ambiguities with respect to the legal significance to be accorded the testimony submitted on behalf of the state in this case.

The Dusky standard emanates from and is given vitality by the due process clause of the fifth amendment. Thus, like many other constitutional protections, the standards utilized for a determination of whether these numerous guarantees have been accorded must be national in application. The standards for judging competency to stand trial fall into the same category as those constitutional principles which govern jury composition, voter participation, freedom of speech and other federally protected rights.

Here, the state record is replete with examples of the use of the M’Naghten standard as a basis for judging Bruce’s competency to stand trial. The M’Naghten rule has no relevance to an intelligent resolution of the competency issue at the time of trial, regardless of the particular standard employed by a state. Whether one knows the difference between “right and wrong” during his trial is unrelated to the crucial factors which compose the Dusky standard.

Thus we conclude that the hearing afforded Bruce by the state, considering the record as a whole, was fundamentally unfair. The circumstances surrounding the hearing, the confusion of the crucial issue, the prejudicial and inflammatory comments by state counsel and the use of an improper standard in determining his competency prevented a fair possibility of a detached and intelligent ascertainment of the question whether Bruce had been competent to stand trial. Considering the animus which a murder conviction instills in the average citizen, a jury’s resolution of allegations like those presented by Bruce must be protected from the introduction of explosive collateral facts and arguments. The record reveals however that the state completely failed to fulfill its responsibility in this regard.

IV

Because we feel that the state hearing was fundamentally unfair and thus was conducted in a manner which would not fully and fairly resolve the issue of petitioner’s competency to stand trial, we remand to the district court for further proceedings. Bruce now asserts that no meaningful determination can be made retrospectively of his mental competence to stand trial in 1965. Initially, we note that this is properly a threshold question for the court to determine on remand. However, based on the record which now exists we certainly see no obstacles to such a retrospective determination.

While it is true that almost eight years have elapsed since Bruce’s trial, the passage of time is only one of the factors to be considered. Here there is abundant expert testimony and at the time of trial Bruce had been recently observed by the staff at Terrell. Thus while not foreclosing further inquiry into this initial question on remand, we think the evidence tends to support the conclusion that a meaningful hearing can now be conducted.

If on remand the court should determine that a meaningful hearing can be conducted, then further proceedings must be held on the competency issue. If however the court should conclude that such a hearing cannot be conducted, then the petition should be granted subject of course to the right of the state to re-try petitioner within a reasonable time.

V

We consider it appropriate to add a caveat with respect to cases of this type. Courts in habeas corpus proceedings should not consider claims of mental incompetence to stand trial where the facts are not sufficient to positively, unequivocally and clearly generate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel during a criminal trial. While the factual pattern will vary from case to ease, the instant case illustrates the standard which should be met to sustain such a claim, viz. a history of mental illness, substantial evidence of mental incompetence at or near the time of trial supported by the opinions of qualified physicians and the testimony of laymen. The burden is on the petitioner to prove his allegations; such proof should be clear and convincing.

It is truly unfortunate that this case has not finally and definitively been resolved. Bruce has now been actively pursuing his post-conviction remedies for seven years. His case has now been reviewed by over seventeen state and federal judges. However, the Constitution guarantees procedures which have substance, not merely form, to insure the vindication of our citizens’ fundamental liberties. We would thus be remiss in our duty if we turned a deaf ear to petitioner’s contentions since the record in this ease evidences proceedings which did not adequately permit him to fairly present his serious allegations. Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

COLEMAN, Circuit Judge

(concurring) :

I concur in the decision that Bruce must be given a meaningful hearing in the District Court. I do this solely because, as described in the opinion prepared by Judge Gewin, the State Court hearing failed to meet the necessary standards of adequacy.

I cannot understand why an “advisory jury” was asked its opinion on the sole issue involved in the post-conviction collateral attack. In such cases as this, findings of fact and conclusions of law are the responsibility of Judges, not juries.

There is much else that I might say about this case but, hopefully, the hearing to be held in the District Court will have extirpated the necessity for such remarks.

      . It was recognized early in our legal history that:
      If a man in his sound memory commits a capital offense, and before his arraignment he becomes absolutely mad, he ought not by law to be arraigned during such frenzy, but be remitted to prison until that incapacity be removed. The reason is, because he cannot advisedly plead to the indictment. . . . And if such person of nonsane memory after his plea, and before his trial, become of non-sane memory, he shall not be tried; or, if, after his trial, he becomes of nonsane memory, he shall not receive judgment, or, if after judgment he becomes of non-sane memory, his execution shall be spared; for were he of sound memory, he might allege somewhat in stay of judgment or execution.
      1 Hale, The History of the Pleas of the Crown, 34-35 (1736), cited in Youtsey v. United States, 97 F. 937, 940 (6th Cir. 1899) (opinion by Justice, then Circuit Judge Lurton). See United States v. Chisolm, 149 F.284, 289-290 (O.C.S.D.Ala. 1906) where the court stated:
      [T]he humanity of the law is such that no man should be considered a proper subject for criminal prosecution, of whose ability to fairly and rationally make a defense there is just ground for reasonable doubt in the minds of the judge or jury which passes on that issue.

      . See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ; Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) ; Sanders v. Allen, 69 App. D.C. 307, 100 F.2d 717, 720 (1938).

      . Bruce v. State, 402 S.W.2d 919 (Tex.Cr. App.1966).

      . Bruce v. Beto, 396 F.2d 212 (5th Cir. 1968). Our vacation and remand of the case was based on the conclusion that after Bruce had exhausted all his state remedies, Texas had enacted a new post-conviction relief procedure which provided for a full hearing on contested issues of fact. See

      Art. 11.07, Vernon’s Ann.Texas Code of Criminal Procedure. See Figari, Competency to Stand Trial in Texas, 25 Sw.L.J. 279 (1971).

      . Both doctors concluded that Bruce “is likely, because of his mental illness, to cause injury to himself or others if not immediately restrained.” Dr. Holbrook stated that Bruce needed “long term psychiatric hospitalization.”

      . Even though Bruce’s father was instrumental in preventing the assertion of an insanity defense, he had been principally responsible for having Bruce committed to Terrell after his arrest.

      . During the one hour interview Dr. Grigson gave Bruce a mental status examination. Dr. Grigson stated that during the interview Bruce displayed no abnormal mannerisms, talked logically, and responded intelligently to questions. During the interview Bruce told Dr. Grigson that he often talked to his deceased wife. Dr. Grigson concluded however that Bruce was “faking” since he did not react to his professed hallucination or evince any of the side effects associated with hallucinations.
      On cross-examination however Dr. Grigson admitted that his discussion with Bruce concerning the events and circumstances surrounding the 1965 trial lasted only a few moments. Other than Bruce’s conduct during the one hour interview, Dr. Grigson gave no specific underlying reasons for his opinion that Bruce was “sane” during the 1965 trial.

      . Dr. Brown based his opinion in part on the following factors:
      (a) Bruce’s long history of mental difficulties including his medical discharge from the Marine Corps.
      (b) The traumatic events surrounding the homicide of his wife.
      (c) Bruce’s difficulty in recalling any events following his arrest in 1965.
      (d) His attempted suicide while in jail following his original arrest for his wife’s murder.
      (e) The medication given to Bruce during his commitment to Terrell in 1965.

      . In his written report to the state court Dr. Tauber stated:
      In my professional opinion gained during many psychiatric evaluations, I believe that he was sane at the time of the offense (murder on December 22, 1964). Under Sodium Amytal on 3-14-69 he described the incident as an accident and he feels extremely guilty as well as sorry about this occurrance. I also gained the opinion that he was very emotional and unstable during the trial in September 1965. It appears that he had difficulty in following the jury trial and I am of the opinion that he was not capable in assisting his own defence [sic] sufficiently. There is a very strong possibility that the emotional stress triggered by the killing of his wife and his incarceration, together with the rejection he received from his children and his wife’s family, together with the excitement of the trial, activated his already present mental illness then (schizophrenia) to become more pronounced disabling him at that time. Therefore, I would assume that he suffered from symptoms of his illness and that he was insane at the time of the trial. During the Sodium Amytal interview on 3-14-69 and during all psychiatric examination [s] he had pronounced difficulties in describing the trial, and he always talked about emotional outbursts in a courtroom and admitted some crying and being confused.

      . Entries in Bruce’s medical history contained in his military discharge are particularly revealing on the traumatic events surrounding his early years:
      1. Patient quit school in the 3rd year [of] high school at the age of 19 because he was expelled because of arguments with a male teacher. His grades were poor and he failed one time. Pie had very little interest in school.
      2. His judgment and insight are nil. His intelligence is dull normal.
      3. The patient went to some firends house on the evening of 12-11-51 and began drinking cocktails. He states he had about 3 or 4 and returned to the barracks and does not remember anything after he left the friends house. The story is as follows: The patient went to the barracks and became very hostile and as-saultive and with the aid of his M-l rifle took complete charge and command of the Marine Barracks for the short space of about 20 minutes, until he was subdued by about 6 Marines. He was taken to the main dispensary where he again became very obscene, combative, assaultive and pugnacious requiring 6 Marines to bring him to the hospital. .
      4. On 2-8-52 patient began drinking and on 2-9-52 drank some more and became extremely assaultive, obscene, destructive and belligerent requiring about 60 grams of sodium amytal within 12 hours. On 2-11-52 he had spontaneous recovery. A careful consideration of this case by the entire staff of this hospital has caused us to conclude that this was an extreme psychopathic episode in a life long behavior problem.

      . Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). “The trial and conviction of a person mentally and physically incapable of making a defense violates certain immutable principles of justice which inhere in the very idea of a free government.” Sanders v. Allen, 69 App.D.C.307, 100 F.2d 717, 720 (1938).

      . 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) ; see also Swinney v. United States, 422 F.2d 1257 (5th Cir. 1970) ; Blake v. United States, 407 F.2d 908, 910 (5th Cir. 1969) (en banc).

      . 362 U.S at 402, 80 S.Ct. at 788.

      . Clark v. Beto, 359 F.2d 554, 557 (5th Cir. 1966).

      . Pate v. Robinson, 383 U.S. 375, 384, 86 S.Ct. 836, 841, 15 L.Ed.2d 815 (1966). “This constitutional right cannot be waived by the incompetent — by guilty plea or otherwise — and thus it must be protected by adequate state procedures.” Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir. 1970). See also Floyd v. United States, 365 F.2d 368, 377 (5th Cir. 1966) ; Johnson v. United States, 344 F.2d 401, 405 (5th Cir. 1965) ; Taylor v. United States, 282 F.2d 16, 22-23 (8th Cir. 1960) ; Nelms v. United States, 318 F.2d 150, 152-153 (4th Cir. 1963) ; Smith v. United States, 267 F.2d 210, 212 (9th Cir. 1959).

      . A petitioner is not automatically entitled to a hearing on his mental incompetency. He must set forth sufficient facts in his petition from which the court can properly determine that there is a need for such a hearing. See Meadows v. United States, 282 F.2d 942 (5th Cir. 1960) (alleged prior mental illness) ; Praylow v. United States, 298 F.2d 792 (5th Cir. 1962) (sentencing court recommended a psychiatric treatment at the time of sentencing) ; Yan de Bogart v. United States, 305 F.2d 583, 588 (5th Cir. 1962) (psychiatric report following post judgment examination suggested mental illness) ; Callahan v. United States, 297 F.2d 79 (5th Cir. 1961) (prior escape from a mental institution) ; Alexander v. United States, 290 F.2d 252 (5th Cir. 1961) (under influence of narcotics during trial). Although these eases involve federal prisoners the same burdens should prevail when a state prisoner seeks federal habeas corpus in the circumstances disclosed by the record in the instant case.

      . Lee v. Alabama, 386 F.2d 97, 105 (5th Cir. 1967) (en bane) (emphasis added).

      . Id. at 108.

      . Carroll v. Beto, 421 F.2d 1065, 1066 (5th Cir. 1970).

      . 372 U.S. at 313, 83 S.Ct. at 757.

      . See 28 U.S.C. § 2254(d) (1970); O’Neal v. Smith, 413 F.2d 269, 270 (5th Cir. 1969).

      . See Lee v. Wiman, 280 F.2d 257, 265 (5th Cir. 1960) ; Johnson v. United States, 344 F.2d 401, 406 n. 13 (5th Cir. 1965) ; Floyd v. United States, 365 F.2d 368, 376, n. 9 (5th Cir. 1966) ; Mims v. United States, 375 F.2d 135, 142 (5th Cir. 1967) ; Lee v. Alabama, 406 F.2d 466, 471-472 (5th Cir. 1969) (en banc) ; Featherston v. Mitchell, 418 F.2d 582, 584 (5th Cir. 1969) ; Floyd v. United States, 427 F.2d 63, 65 (5th Cir. 1970). See also United States v. Taylor, 437 F.2d 371, 375-376 (4th Cir. 1971) ; Holt v. United States, 329 F.2d 368, 372 (7th Cir. 1964) ; Feguer v. United States, 302 F.2d 214, 236 (8th Cir. 1962) ; Noble v. Sigler, 351 F.2d 673, 676-677 (8th Cir. 1965) ; Wolcott v. United States, 407 F.2d 1149, 1151 (10th Cir. 1969) ; Arnold v. United States, 432 F.2d 871, 874 (10th Cir. 1970) ; Oliver, Remarks, Panel on Recognizing and Determining Mental Competency to Stand Trial-Insanity as a Defense, 37 F.R.D. 155, 158-160 (1964) ; Matthews, Mental Disability and the Criminal Law, 83-87 (1970).

      . Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

      . This was one of the deciding factors in the Supreme Court’s reversal in Dusky v. United States, 362 U.S. 402, 403, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

      . “Constitutional protections are not reserved for good people and denied to bad, nor does competence to stand trial go by the board because the crime charged is serious.” Tyler v. Beto, 391 F.2d 993, 1003 (5th Cir. 1968) (Godbold, J. dissenting). See also McDonald v. Wainwright, 466 F.2d 1136 (5th Cir. 1972) ; Hall v. United States, 419 F.2d 582 (5th Cir. 1969) ; United States v. D’anna, 450 F.2d 1201, 1206 (2d Cir. 1971) ; United States v. Jenkins, 140 U.S.App.D.C. 392, 436 F.2d 140, 145 (1970). Chief Judge Bazelon has noted that:
      When the defense of insanity has been properly invoked, the law requires proof beyond a reasonable doubt that the accused was sane at the time of the offense charged. It will not countenance an appeal to a jury for a conviction upon the ground that, even if he was insane, he is the type of person wlio may be dangerous. . . . [Njothing justifies a judge in warning a jury that, if they acquit the accused, they will be releasing a dangerous man to prey upon society.
      Blunt v. United States, 100 U.S.App.D.C. 266, 244 F.2d 355, 367 (1957). Although the posture of the present case is not the same as that existing in Blunt, these observations are equally applicable to the prejudicial conduct at Bruce’s state hearing.

      . See Burgett v. Texas, 389 U.S. 109, 120, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Harlan, J. dissenting).

      . Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965) citing Sinclair v. United States, 279 U.S. 749, 765, 49 S.Ct. 471, 73 L.Ed. 938 (1929).

      . Cf. Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

      . The instructions given by the court are set forth in full below:
      The defendant, Robert Vernon Bruce, is presently incarcerated under a life sentence, having been convicted of the felony criminal offense of murder with malice aforethought. The issue of his sanity is properly before this Court upon a Writ of Habeas Corpus.
      You are instructed that every person is presumed to be sane, that is, of sound memory and discretion until the contrary is shown by proof, and the burden of proof, as to insanity, is upon the defendant to prove his insanity, if any, by a preponderance of the evidence, that is, by the greater weight of the credible testimony.
      You are further instructed that under. the law no person can be tried for a criminal offense while in a state of insanity.
      This is a trial upon the issue of present insanity.
      You are charged that in law, a person is deemed to be insane when such person is laboring under such defect of reason as not to know the nature and quality of the act or acts he was doing, or if he did know the nature and quality of his act or acts, he did not know he was doing wrong, that is, that he did not know the difference between the right and the wrong as to the particular act or acts he was doing. The mind must be so dethroned of reason as to deprive him at the time of a knowledge of the right and the wrong as to his act or acts, and deprive him of the power to choose between right or wrong as to his act or acts.
      In this connection you are further instructed that in law a person is deemed to be presently insane if he is in such mental condition so that he does not know the nature of the charges against him, and the consequences thereof, and that he is mentally unable to comprehend the proceedings taking place, and mentally unable to consult and advise with his attorney and with others with that degree of understanding as to render him mentally competent to make a rational defense, if any he has, to the charges against him.
      On the issue of present insanity of the defendant, you are instructed that the law requires a jury to find and state in its verdict whether the defendant is sane or insane at the time of this trial, and if the jury finds the defendant to be presently insane, then, the jury shall find and state in its verdict whether the defendant requires hospitalization in a mental hospital for his own welfare and protection or the protection of others.
      If the jury finds the defendant to be presently insane, then you shall find and state in your verdict whether the defendant requires hospitalization in a mental hospital for his own welfare and protection or the protection of others.
      Now, bearing in mind the foregoing instruction, it is your duty to find and state in your verdict whether this defendant is sane or insane at this time, the time of this trial, to-wit: September 24, 1969, and whether the defendant does or does not require hospitalization in a mental hospital for his own welfare and protection or the protection of others.
      After giving the foregoing instructions which defined the issue as “a trial upon the issue of present insanity” the court, nevertheless, submitted 3 forms of verdicts, one dealing with the sanity of petitioner at the time of the habeas hearing on September 24, 1969, a second dealing with his sanity at the time of the trial on September 21, 1965, and a third addressing his sanity at the time of the alleged murder on December 22, 1964.
      The instructions set forth above were not presented to the United States District Court. They were furnished to the Clerk of this court upon request through the courtesy of the Attorney General of Texas.

      . The Eighth Circuit aptly stated and correctly responded to the issue presented here:
      State courts . . . apply different and varying standards to determine a defendant’s fitness to proceed. When the Federal court is called upon by a habeas corpus petition to assess the mental condition of a state prisoner at the time of his trial, should the court apply the standard that was, or would have been, used by the state trial court, or should it apply the test applicable in Federal criminal cases?
      The answer appears to us to be that the Federal standard for competency must be applied even though the original proceeding was before a state court. Since this is a Federally recognized right, its determination must be by Federal standards. It should not be subject to the varying and perhaps lesser standards established by state law. It must be above dilution and equally applicable as a minimum guarantee to citizens of all states.
      Noble v. Sigler, 351 F.2d 673, 677 (8th Cir. 1965).

      . See, e. g., Carroll v. Beto, 330 F.Supp. 71 (N.D.Tex.) aff’d, 446 F.2d 648 (5th Cir. 1971) (determination made 22 years after trial).

      . See McGarrity v. Beto, 335 F.Supp. 1186, 1194 (S.D.Tex.) aff’d, 452 F.2d 1206 (5th Cir. 1971) ; Sensabaugh v. Beto, 343 F.Supp. 563 (N.D.Tex.1972) ; Sharp v. Beto, 276 F.Supp. 871 (N.D.Tex.1967).