'Criminal Order—Refusal to Suspend Judgment—Review on Appeal—Insanity.—An order made prior to judgment, denying the motion of the defendant to suspend judgment on the ground that he is insane, is not an appealable order, but the action of the trial court is reviewable on the appeal from the judgment.

B>.—Assault by Convict Undergoing Life Sentence—Constitutional Law—Gruel and Unusual Punishment—Death Penalty. —Section 246 of the Penal Code, imposing the death penalty úpon every person undergoing a life sentence in the state prison, who, with malice aforethought, commits an assault upon the person of another with a deadly weapon, is constitutional. It is not violative of section 6 of article I of the state constitution prohibiting “cruel or unusual punishments,” nor of the fourteenth amendment of the constitution of the United States.

Id.—Information—Admission of Conviction—Beading Information —Evidence of Conviction.—An information for such offense must allege that the defendant, at the time of the assault, was undergoing a life sentence; and on the trial thereof, notwithstanding the defendant, on his arraignment, admits the conviction alleged in the information, it was proper for the clerk in reading it to the jury, to read that portion relating to the prior conviction, and evidence thereof was properly received.

Id.—Prior Conviction when Element of Offense Charged.—The provisions of section 1025 and subdivision 1 of section 1093 of the Penal Code, providing that a charge of a previous conviction must not be read to the jury nor alluded to on the trial, when the defendant confesses the same, have no application where the fact of the prior conviction is an essential element of the offense charged.

Id.—Evidence of Conviction—Commitment—Judgment-roll.—On the trial of such offense, although the record of the commitment was admissible in proof of the conviction, it was not error to also admit in evidence the judgment-roll in the action resulting in the judgment of conviction, excepting the instructions to the jury.

Id.—Assault with Deadly Weapon—Use of Two Weapons—Immaterial Variance. — An information for such offense, which alleges that the assault was done with “a deadly weapon,” need not specify the nature of the weapon; and on the trial, evidence is admissible showing {hat the defendant used two weapons in making the assault. Such evidence did not show the commission of two offenses; it constituted a mere variance between the charge and the proof, which could not have prejudiced the defendant, and which must be disregarded.

Id.—Evidence—Conditions of Imprisonment Tending to Produce Insanity—Evidence—Cross-Examination,—Where the warden of the prison, as a witness for the defendant, and in support of the defense that the defendant was insane at the time of the assault, testified solely to the condition of life surrounding the defendant while in prison, the object being to show such conditions as might produce insanity, it was improper, on cross-examination, to permit him to testify as to statements made by him to the defendant as to his reasons for requiring him to live under such conditions.

Id.—Unpkejudicial Error in Admitting Evidence.—The admission of -such testimony was without prejudice, where it was an admitted fact in the case that the defendant, for more than eight years, had been kept in solitary confinement in the incorrigible ward of the prison. And the same is true of the cross-examination of one of the prison guards, who testified to the various occasions in which the defendant had been confined in the dungeon.

Jo.—Conversations Tending to Show Insanity—Exclusion of Particular Conversation.—Where the defendant was given full latitude in the matter of showing conversations between himself and others for the purpose of proving insanity, and introduced much evidence of that kind, the sustaining of an objection to a question asked respecting a particular conversation will be deemed without prejudice, where no specific claim was made in the trial court that the proposed evidence was important as tending to show any insanity.

Id.—Evidence of Conduct of Prison Authorities after Assault.— Evidence that the defendant, after the assault, was confined in a strait-jacket by the prison authorities, was inadmissible to show his mental condition at the time of the assault.

Id.—Insanity of Other Persons Confined in Incorrigible Cells.— On the issue of the defendant’s sanity, evidence of non-expert prison authorities, that other persons confined • in the incorrigible cells had become insane while so confined, is irrelevant and immaterial.

Id.—Instructions—Insanity as a Defense—Preponderance of Evidence.—An instruction given on the subject of insanity as a defense, construed in connection with its context, is held to correctly state the rule in force in this state, that the defendant, in order to establish such defense, must do something more than create a mere doubt as to his sanity, but must show such insanity by a preponderance of evidence.

Id.—Form of Verdicts.—Mo verdicts other than that of guilty of the offense charged or not guilty are permissible in a prosecution for the offense defined in section 246 of the Penal Code.

Id.—Assault with two Weapons—Instruction on Subject of Intent.—Where the evidence of the prosecution tended to show that the assault was committed with two weapons, to wit, a window weight and a knife, an instruction requested by the defendant was properly refused, which in effect directed them to acquit if they were satisfied beyond all reasonable doubt that the blow with the weight was intentional and deliberately inflicted, but were in doubt whether the cutting with the knife was accidental and not intended.

Id.—Instruction on Subject of Accident Covered by Other Instructions.—The refusal of an instruction requested by the defendant to the effect that the jury must acquit, if they believed that the person alleged to have been assaulted was injured by accident and without evil design, or intention or malice aforethought, is without prejudice, where other clear and explicit instructions were given by the court as to what they must find in the way of intention and malice aforethought before they could convict.

Id.—Mewly Discovered Evidence of Insanity—Refusal of Mew Trial—Appeal.—The refusal to grant the defendant a new trial on the ground of newly discovered evidence on the question of insanity, will not be interfered with on appeal, when the showing made in that behalf was not such as to warrant the appellate court in holding that the trial judge erred in concluding that the newly discovered evidence was not sufficiently strong to render a different result probable.

Id.—Doubt of Judge as to Defendant’s Sanity—Refusal to Suspend Judgment.—The refusal of the trial judge to suspend judgment until the question of the defendant’s sanity could be submitted to a jury, will not warrant a reversal when it clearly appears that the judge was without doubt as to the sanity of the defendant at the time the judgment was pronounced, and it cannot be said that his state of mind was not fully warranted by the evidence and the appearance and conduct of the defendant.