The defendant appeals from judgments of conviction on two indictments for first degree murder which were consolidated for trial.

*191 Over objection of counsel for the defendant the court received in evidence a confession made by the defendant under interrogation by the police and while he was in police custody. The defendant was not informed before interrogation of his right to counsel. At the time the case was tried the decision on rehearing in State v. Neely, 239 Or 487, 494, 395 P2d 557, 398 P2d 482, had not been rendered. The state confesses error and a new trial is ordered.

There is also assigned as error the trial court’s refusal to give an instruction requested by the defendant upon the subject of “mental defect” (see OES 135.870) as it may relate to criminal intent, malice, deliberation and premeditation. We express no opinion upon this question as it may not arise on another trial.

Eeversed and remanded.