
    PEOPLE v. WARREN
    Criminal Law — Defenses—Insanity—Instructions to Jury.
    The rule requiring that, where the defense of insanity is properly before the jury, upon the defendant’s timely request the court must instruct the jury informing them of defendant’s disposition if he is found not guilty by reason of insanity is retroactively applicable to all trials before December 2, 1969, where the issue has been properly preserved for appeal.
    References for Points in Headnote
    21 Am Jur 2d, Criminal Law § 45.
    Instructions in criminal case in which defendant pleads insanity as to his hospital confinement in the event of acquittal. 11 ALR 3d 737.
    Appeal from Recorder’s Court of Detroit, Joseph A. Gillis, J.
    Submitted Division 1 December 12, 1970, at Detroit.
    (Docket No. 9271.)
    Decided June 25, 1971.
    Robert Earl Warren was convicted of kidnapping, assault with intent to rape, and gross indecency. Defendant appeals.
    Reversed and remanded.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Assistant Prosecuting Attorney, for the people.
    
      Gerald Brock, for defendant on appeal.
    
      Before: Lesinski, C. J., and Levin and O’Hara, JJ.
    
      
       Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
    
   Per Curiam.

The defendant, Robert Earl Warren, appeals his conviction of kidnapping and assaulting a woman with intent to rape her and committing an act of gross indecency with her.*

Before the trial commenced a notice that the defendant would advance an insanity defense was filed. The defendant timely requested that the judge charge the jury in accordance with the so-called Lyles rule.

In People v. Cole (1969), 382 Mich 695, 720, a majority of the Michigan Supreme Court expressed its agreement with the Lyles rule. In People v. Hampton (1971), 384 Mich 669, the Michigan Supreme Court held that Cole would apply retroactively to cases where the issue had been properly preserved for appeal and affirmed our Court’s decision reversing Hampton’s conviction and granting him a new trial. On the same day that Hampton was decided, the Supreme Court, on the authority of Hampton, reversed another conviction and granted the defendant in that case a new trial. See People v. Eisenberg (1971), 384 Mich 727.

Under the majority opinions of the Supreme Court in Hampton and Eisenberg we are obligated to reverse and remand for a new trial. 
      
       MCLA § 750.349 (Stat Ann 1954 Rev § 28.581); MCLA § 750.85 (Stat Ann 1962 Rev § 28.280); MCLA § 750.338b (Stat Ann 1954 Rev § 28.570 [2]).
     
      
       MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043).
     
      
      
        Lyles v. United States (1957), 103 App DC 22 (254 F2d 725).
     