427 F.2d 1173
Jesse Lara LOPEZ, Appellant,v.UNITED STATES of America, Appellee.
No. 24188.
United States Court of Appeals, Ninth Circuit.
June 8, 1970.

John J. Doyle, Sausalito, Cal., for appellant.
J. S. Obenour (argued) Asst. U.S. Atty., Stan Pitkin, U.S. Atty., Tacoma, Wash., for appellee.
Before CARTER and TRASK, Circuit Judges, and BATTIN,1 District judge.
PER CURIAM.


1
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.


2
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.


3
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.  United 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.


4
The judgment is reversed and the case remanded for a new trial.



1
 Honorable James F. Battin, United States District Judge, District of Montana, sitting by designation


