People v. Warren , 34 Mich. App. 622 ( 1971 )

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.* ¹

Before the trial commenced a notice that the defendant would advance an insanity defense was filed.² The defendant timely requested that the judge charge the jury in accordance with the so-called Lyles rule.³

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.

1 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]).

2 MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043).

3 Lyles v. United States (1957), 103 App DC 22 (254 F2d 725).