(concurring) .
I concur in Parts I, II and III of the court’s opinion.
As to the Lyles point with respect to hospital confinement following a verdict of not guilty by reason of insanity, I have not changed my view.
Here the defense did not request such an instruction although various other requests were submitted. Rule 30 provides that no omission from the charge shall be assigned as error by the appellant unless before the jury retires, objection be made “stating distinctly the matter to which he objects and the grounds of his objection.”
The judge specifically asked trial counsel if he had “any other objection to the charge, as given.” He replied, “No other objection to the charge.”
Of course the instruction, if requested, would have been given. Cf. Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). But in view of the trial strategy, the accused may not have wanted an instruction on the Lyles question. We now seem to say that the defense could sit back, wait to see what verdict the jury might reach, and thereafter secure reversal here because it does not “affirmatively” appear that the Lyles instruction was waived. Lyles thus becomes a legal trap for the trial judge who relied upon the position voiced by counsel.
I do not subscribe to that view.