JESSE LARA LOPEZ, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE
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The court held that the appellant's conviction must be reversed because the jury was instructed on an outdated insanity test, despite a new test being announced and applied retroactively to pending appeals.
Appellant was convicted of assault with a knife upon a custodial officer. The defense of insanity was raised but without expert testimony from the def…
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PER CURIAM.
This is an appeal from a conviction and sentence for an assault with a knife upon a custodial officer at McNeil Island Penitentiary, in violation of 18 U.S.C. § 111. The defense of insanity was raised at trial but appellant offered no expert testimony on this issue. The government, however, did offer expert testimony, but such testimony was given in accordance with the insanity test then in effect in this Circuit, i. e., M’Naghten plus irresistible impulse as set forth in Sauer v. United States (9 Cir. 1957), 241 F. 2d 640, cert. denied 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539. The court’s final instruction to the jury on the issue was also in accordance with this test.
An appeal was pending at the time this court announced its new insanity test in Wade v. United States, 424 F. 2d 64 (9th Cir. Mar. 30, 1970). Wade provided for limited retroactivity, including cases pending on appeal.
The record indicates that appellant acquiesced in the insanity instruction given by the trial court. Such acquiescence,, however, did not amount to a waiver of his rights under Wade. Unit ed States v. Wanger, 426 F. 2d 1360 (9 Cir. May 8, 1970). While the District Judge’s action was proper on the state of the law at the time of appellant’s trial, the only course open now is reversal.
The judgment is reversed and the case remanded for a new trial.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Sauer v. United States, 241 F.2d 640 (9th Cir. 1957)
- Scott v. Segarra-Serra, 354 U.S. 940 (U.S. 1957)
- Alexander v. United States, 354 U.S. 940 (U.S. 1957)
- United States v. Wanger, 426 F.2d 1360 (9th Cir. 1970)