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UNITED STATES of America, Plaintiff-Appellee, v. Burton Strout MARKS, Defendant-Appellant.

No. 24870.

United States Court of Appeals, Ninth Circuit.

June 24, 1970.

*588Paul N. Halvonik, San Francisco, Gal. (argued), Charles C. Marson, of American Civil Liberties Union of Northern California, Burton Strout Marks, San Jose, Cal., for appellant.

Paul Fitzgerald (argued), Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., Michael Metzger, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before BROWNING, WRIGHT and TRASK, Circuit Judges.

PER CURIAM:

In this prosecution for burning a draft card, 50 U.S.C. App. § 462(b) (3), there was expert testimony that the appellant suffered from severe anxieties and could not control his actions. The District Court, following the M’Naghten Rules, instructed the jury to find appellant not guilty by reason of insanity if his will was so “completely destroyed or impaired” that he was incapable of conforming his conduct to the requirements of the law. Under our decision in Wade v. United States, 426 F.2d 64 (9th Cir. 1970) (en banc), the jury should have been instructed to acquit by reason of insanity if they found that appellant lacked “substantial capacity” to conform his conduct to the requirements of the law. Wade controls this case, since the conviction was not final on March 30, 1970.

Reversed.

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