dissenting.
I dissent.
If we were starting with a clean slate, I would agree that defendant was not entitled to the instruction in the form requested. However, we do not have a clean slate; the Supreme Court held in State of Oregon v. Garver, 190 Or 291, 225 P2d 771 (1950), 27 ALR2d 105 (1953), that if a defendant has properly raised the defense of "insanity” and has established that he was committed by court order to a mental hospital because of a mental disease or illness which is shown to be *625chronic, not temporary, he is entitled to a jury instruction as requested here.
Since I am unable to distinguish Garver, I conclude defendant was entitled to have the instruction given. It is not enough to point out that the defendant at the time of Garver was required to prove the insanity defense beyond a reasonable doubt, whereas the defendant in this case was not. If the presumption was valid in Garver, it is valid here.