¶1Mr. Milton M. Gottesman, Washing-, ton, D. C., with whom Mr. William E. Leahy, Washington, D. C. (both appointed by this Court) was on the brief, for appellant.
¶2Mr. Lewis A. Carroll, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Arthur J. McLaughlin and *761John W. Kern, III, Asst. U. S. Attys., were on the brief, for appellee. Mr. Carl W. Belcher, Asst. U. S. Atty., also entered an appearance for appellee.
¶3Before EDGERTON, Chief Judge, and BAZELON and WASHINGTON, Circuit Judges.
¶5On Durham’s former appeal, we reversed his conviction of housebreaking and remanded the case for a new trial because the trial court had erroneously applied “existing rules governing the burden of proof on the defense of insanity … 1 In addition, we announced a new test of criminal responsibility. Upon re-trial, Durham has again been convicted.2 We must again reverse and remand for a new trial because of fatally defective instructions to the jury.
¶6The judge told the jury that the Acting Superintendent of St. Elizabeths Hospital had advised the court on February 12, 1953 that Durham was found competent to stand trial and assist in his own defense. Later, after correctly stating that he would commit Durham to St. Elizabeths if he were found not guilty by reason of insanity, the judge added that Durham would remain there until determined to be “of sound mind” by the hospital authorities; and that “if the authorities adhere to their last opinion on this point, he will be released very shortly.”3 Thus the judge conveyed to the jury the idea, which he also expressed at a bench conference with counsel, that the authorities had found Durham to be “of sound mind” and that he would be discharged “very shortly” after commitment unless their opinion changed. This was plain error.4
¶7The “last opinion” referred to by the court was apparently the February 12, 1953 letter of Dr. Silk, Acting Superintendent of St. Elizabeths, regarding Durham’s competency to stand trial. This letter was not in evidence.» Nor could it have been. The “fair meaning” of § 4244 of Title 18 U.S.C. is that “the jury should not be told that the accused has been found competent to stand trial.” 5 Hence the court erred in calling the jury’s attention to the letter.
¶8But there is an even more critical fault. Competency to stand trial is entirely different from such soundness of mind as would warrant discharge from the hospital.6 A striking illustration of *762the difference is found in this very ease in these word's from Dr. Silk’s letter: “Prolonged psychiatric study has established that [Durham] suffers from psychological illness but is mentally competent to stand trial and is able to consult with counsel to properly assist in his own defense.” (Emphasis supplied.) This court recognized in Durham’s former appeal that a defendant who is competent to stand trial may nevertheless be suffering from a mental illness presenting dangers against which protection is necessary. We specifically pointed out that upon acquittal by reason of insanity the defendant “may be confined as long as ‘the public safety and … (his) welfare’ require.”7 This is what the judge should have told the jury hjere.8
¶9The judge’s statement that the defendant would “be released very shortly” was highly prejudicial, for it implied a warning that dire consequences might result from a finding that the defendant was not guilty by reason of insanity. Such a warning goes far to deprive the insanity defense of any real meaning as a jury issue.9 The judge’s statement that such a warning is justified by our decision in Taylor v. United States, supra, note 5, is erroneous.10
¶10Reversed and remanded for a new trial.