Everett Lyle Thomas v. United States

Ninth Circuit

Everett Lyle Thomas v. United States

429 F.2d 33, 1970 U.S. App. LEXIS 8659

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 17, 1970

Docket24574

StatusPublished

This text of 429 F.2d 33 (Everett Lyle Thomas v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Everett Lyle Thomas v. United States, 429 F.2d 33, 1970 U.S. App. LEXIS 8659 (9th Cir. 1970).

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Opinion

PER CURIAM:

On March 3, 1970, this case was submitted for decision. The several assignments of error made by appellant need not be dealt with in view of the disposition we make of this case.

The issue of appellant’s competency at the time of the offense was raised in the District Court. That court instructed the jury as to the competency issue substantially in the language of Mathes and Devitt Federal Jury Practice and Instructions, 1968 Pocket Part, Instruction No. 10.14, the so-called modi *34 fied M’Naghten rule, the law of this circuit prior to Wade v. United States, 426 F.2d 64 (9th Cir., 1970). Wade applies to this case since appellant’s conviction has not yet become final. Appellant cannot now be prejudiced by reason of defense counsel’s failure to object to the instructions given on the issue of competency, nor by the failure of trial counsel to request the instructions approved in Wade, nor by appellant’s failure to attack the instruction given as to competency before this Court on this appeal.

Under Wade and as was done by another panel of this Court, in United States v. Wanger, 426 F.2d 1360 (9th Cir., 1970), we must, sua sponte vacate the judgment and remand the case for a new trial.

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PER CURIAM:

On March 3, 1970, this case was submitted for decision. The several assignments of error made by appellant need not be dealt with in view of the disposition we make of this case.

The issue of appellant’s competency at the time of the offense was raised in the District Court. That court instructed the jury as to the competency issue substantially in the language of Mathes and Devitt Federal Jury Practice and Instructions, 1968 Pocket Part, Instruction No. 10.14, the so-called modi *34 fied M’Naghten rule, the law of this circuit prior to Wade v. United States, 426 F.2d 64 (9th Cir., 1970). Wade applies to this case since appellant’s conviction has not yet become final. Appellant cannot now be prejudiced by reason of defense counsel’s failure to object to the instructions given on the issue of competency, nor by the failure of trial counsel to request the instructions approved in Wade, nor by appellant’s failure to attack the instruction given as to competency before this Court on this appeal.

Under Wade and as was done by another panel of this Court, in United States v. Wanger, 426 F.2d 1360 (9th Cir., 1970), we must, sua sponte vacate the judgment and remand the case for a new trial.

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Bluebook (online)

429 F.2d 33, 1970 U.S. App. LEXIS 8659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-lyle-thomas-v-united-states-ca9-1970.

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