Theodore R. Moore v. United States

The petitioner’s motion for leave to appeal at government expense was denied by a division of this court. Thereafter petitioner through his counsel moved for reconsideration en banc of his petition in forma pauperis. This petition for rehearing en banc was denied. A statement having been filed on behalf of members of the court who thought the petition should be granted, this explanation seems indicated.

The minority statement indicates that the petition for an appeal at government expense should be allowed in order that we may consider whether it was error for the trial court to refuse to give the instruction on insanity based on evidence that petitioner had an intelligence test rating or score of 69 as shown by tests when he was in school and when he was admitted into military service.

In essence the dissenting view is that we should allow this appeal to consider whether the “insanity” instruction defined in Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430 (1954), should be extended to defendants classified as morons by psychological intelligence tests scoring the subject as less than 70.

This court has heard several cases en banc in which the closely related so-called “diminished responsibility” rule has been urged upon us and in no case until recently has the court even commented on the argument so advanced. Cf. Blocker v. United States, 1959, 107 U.S.App.D.C. 63, 274 F.2d 572. Our recent opinion in Stewart v. United States, 1960, 107 U.S.App.D.C. 159, 275 F.2d 617, makes it clear that concept is rejected.

The issue sought to be raised by the dissenting opinion is totally outside of and beyond the rule enunciated in any case decided by this court.

It is well established that psychiatrists and psychologists freely concede there is no absolute accuracy and reliability of tests for the measurement of intelligence.1 Such tests as are used are treated as guides, not absolutes, by responsible experts. Two persons of substantially the same mental capacity may test with materially different scores or ratings in intelligence tests, depending on the extent of their education, training, their environmental background and other factors. The evidence in this ease shows appellant is not a person suffering from either a “disease” or a “defect” as this court has defined those terms.