(dissenting).
In Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 379, 222 F.2d 398, 404, we established the rule that “when an accused person has pleaded insanity, counsel may and the judge should inform the jury that if he is acquitted by reason of insanity he will be presumed to be insane and may be confined in a ‘hospital for the insane’ as long as ‘the public safety and * * * [his] welfare’ require.” We cited D.C.Code § 24-301 (1951) which provided that, in case of such acquittal, the court “may” certify the fact to the Federal Security Administrator who, in turn “may” order confinement. After our Taylor decision, Congress amended the statute to make commitment to a mental institution mandatory in cases of acquittal by reason of insanity and providing standards and procedure for termination of confinement.1 The substance of the statute is that a person thus confined will remain confined until the superintendent of the hospital certifies that he has recovered his sanity and “will not in the reasonable future be dangerous to himself or others” and, upon demand of the prosecutor, the court, after notice and hearing, makes those same findings.
What effect the enactment of this statute had upon the instruction to be given the jury came before the full court in Lyles v. United States, - U.S.App.D.C.-,-F.2d-. We held that, unless it “appears affirmatively on the record” that the “defendant [does] not want such an instruction given * * * s whenever hereafter the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity * * * .” Exactly what the jury must be told we merely indicated, but did not elaborate, referring, instead, to our discussion of the problem in Taylor v. United States, 95 U.S.App.D.C. at page 379, 222 F.2d at page 404.
The reason for requiring the instruction, as I pointed out in my dissenting opinion in Lyles, - U.S.App.D.C. at -,-F.2d at-, is that, without it, a jury, influenced by the specter of violent lunatics turned loose in the community, may “convict, despite strong evidence of insanity at the time of the crime.” See also Durham v. United States, 99 U.S. App.D.C. 132, 237 F.2d 760 (1956). If justice is to be done, “the jury has a right to know the meaning of [a verdict of not guilty by reason of insanity] as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” Lyles v. United States, - U.S.App.D.C. at -, - F.2d at -.
It is usually impossible to show the exact extent of prejudice to the defendant resulting from omission of an instruction which justice requires. We obviated future questions as to prejudicial effect by holding in Lyles that the instruction is mandatory unless the defendant affirmatively shows that he does not want it. In so doing, of course, we did not overrule Taylor or in any way dimin*134ash its force. On the contrary, we approved it. We did not hold that in cases decided between Taylor and Lyles, the instruction could properly have been omitted even absent affirmative rejection by the defendant. What we did was to establish for future cases the rule we think must flow from the amended statute. Lyles left open the question whether, in a case like the present one, tried after Taylor but before Lyles, the instruction was so mandatory that there was an absolute judicial duty to give it even when the matter had not been brought to the attention of the judge. But the reasoning of both Taylor and Lyles compels the conclusion that, with the instruction brought to the judge’s attention, it was error to refuse it.
The judge’s refusal to give the Taylor instruction in the instant case is sustained by the majority on the ground that the defense “consciously and deliberately refrained from” requesting it and objecting to its omission. They do not hold, It should be noted, that mere neglect by the defense to request the instruction or «object to its omission justifies refusal, ¡but only that conscious and deliberate refraining does so. The question is, then, whether there was such conscious and «deliberate rejection of the instruction by the defense as to amount to clear waiver.
What happened below is not in dispute. After the judge had given his charge to the jury, there was a bench conference at which the prosecutor said:
“Your Honor, as I recall, the Taylor case says that you should tell the jury, and I understand they all tell the jury, if the defendant’s verdict is ■«of unsound mind, why, then, he will be committed to St. Elizabeth’s until the authorities over there — ”
The judge interrupted:
“I am perfectly familiar with the Taylor case and I want to put it in the record that I will do no such thing. In the first place, it is obiter dicta; and in the second place, it is not so and I will not do it unless the Court of Appeals demands that it be «done.”
About two months later, in comment upon appellant’s affidavit in support of his application for leave to proceed without prepayment of costs, the judge filed a memorandum for the purpose of explaining his reasons for refusing the instruction. Those reasons were (1) that the language as to the instruction was obiter dicta in Taylor; (2) that the Taylor rule is not mandatory; and (3) that in this case, the testimony made it clear that the psychiatrists considered appellant mentally sound. In view of the foregoing reasons, stated the memorandum, “This Court sincerely believes that it would have been mentally dishonest for it to give the instruction.”
Waiver is defined by the Supreme Court as “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. My colleagues put it in terms of “consciously and deliberately” rejecting the right or privilege. It cannot be said that it was “known” to appellant that he had a right to the Taylor instruction, when the trial judge had just finished saying, “ * * * it is not so * * *.” And it cannot be said that appellant’s silence was an “intentional” relinquishment of the instruction, in the face of the trial judge’s flat announcement that he would not give the instruction unless forced to do so by this court.
The fact that the suggestion that the Taylor instruction be given emanated from the prosecution rather than the defense had nothing to do with the trial judge’s refusal to give it. That refusal, as I have shown, was based on a theory that the giving of the instruction is discretionary and on a considered judgment that, in the proper exercise of discretion in this case, the instruction should be refused, whether asked by the one side or the other. Nor did the Government, in its argument here, seek to justify the refusal of the instruction on a waiver theory. Rather, it defended it upon the ground that the refusal was a proper exercise of discretion. There is no support *135in the record for this court’s determination of waiver. The right to the Taylor instruction may not be one of those constitutional rights against waiver of which “courts indulge every reasonable presumption,” Johnson v. Zerbst, supra; it is, however, a right so fundamental to the scheme of justice where a criminal charge is defended on the ground of insanity that courts should not seek out waiver where none exists. To construe waiver out of silence in the circumstances of this; case is to weaken the fabric of the law" not only in this context, but in any other context in which the concept of waiver may be applicable.
. Act of Aug. 9, 1955, 09 Slat. 609, D.C.Code, § 24-301 (d) and (e) (1951 Supp. V).