
220 S.E.2d 825 (1976)
28 N.C. App. 308
STATE of North Carolina
v.
Sammy McMILLIAN.
No. 7512SC686.
Court of Appeals of North Carolina.
January 7, 1976.
*827 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ann Reed, Raleigh, for the State.
Public Defender James D. Little, Fayetteville, for defendant.
CLARK, Judge.
The defendant assigns as error the ruling of the trial court that the defendant was mentally competent to stand trial and the ruling of the court that this determination be made by the trial judge rather than the jury.
A defendant's mental capacity to plead to a bill of indictment and to aid in the preparation and conduct of his defense is a preliminary question to be decided by the trial judge prior to the trial and in the absence of prospective jurors. State v. Thompson, 285 N.C. 181, 203 S.E.2d 781 (1974). The test is whether the defendant has the capacity to comprehend his position, to understand the nature and object of the proceedings against him, to conduct his defense in a rational manner and to cooperate with his counsel to the end that any available defense may be interposed. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968).
The facts found and the conclusions drawn from them by the trial judge are supported by the evidence. This assignment of error by the defendant is not sustained.
The defendant assigns as error the following instructions given by the judge in his charge to the jury:
". . . Should you bring back a verdict that he was insane at the time, then there will be a further inquiry made by another jury as to whether or not he is insane at this time; that is, at the time the other jury is empaneled to determine his sanity. And depending on what that jury finds, he can be committed for up to but not to exceed ninety days, or not committed at all, if they find that he is sane."
The evidence does not reveal that either the State or the defendant requested that the jury be instructed relative to what happens to the accused if the jury found him not guilty by reason of insanity. The propriety of giving such an instruction was recently discussed by this Court in State v. Sellers, 26 N.C.App. 51, 214 S.E.2d 790 (1975). In that case we pointed out that North Carolina follows the majority view that the jury is not concerned with punishment or what happens to the accused after verdict, but is only concerned with matters bearing on guilt or innocence.
While the circumstances of a particular case may justify, or require, that the trial court instruct the jury as to procedures for restraint in the event of a verdict of not guilty by reason of insanity, the instructions must be in proper form and must accurately describe the law governing these procedures for restraint. The foregoing instructions of the trial court do not accurately describe the procedures as set out in G.S. § 122-84.1.
Sub judice, there was strong evidence that the defendant was not mentally competent. It appears from the record on appeal that after some deliberation, the jury returned to the courtroom and informed the court that the jury was divided on the question of whether the defendant was not guilty by reason of insanity. We conclude that in the light of the evidence in this case the instructions of the trial judge quoted *828 above were inaccurate and could have caused the jury to find the defendant guilty for the reason that an insanity acquittal would free in a short time one who was dangerous to society.
New trial.
VAUGHN and MARTIN, JJ., concur.
