Appeal from the Eleventh District.

The defendant was in custody, on an offense charged, about two months before the commencement of the term of Court at which he was indicted. The Grand Jury was summoned as in the preceding case—People v. Cuintano. The prisoner had no counsel in the Court of Sessions. He was brought into Court, and an opportunity given of challenging the jury. The record states, “the following challenges were then made, and sustained by the Court, and the jurors so challenged were directed to take no part,” etc., three jurors being named. By whom these challenges were made does not appear. It seems, however, that the prisoner was a Belgian, understood but little English, asked the Court of Sessions to assign him counsel, and, in fact, did not exercise his right of challenge.

In the District Court, defendant, before pleading, by his counsel, objected that the Grand Jury was illegally summoned, and asked permission then to challenge the panel. The motion was denied, and the defendant moved that the case be sent back to the Court of Sessions to enable him to exercise his right of challenge. Denied.

On the trial, affidavits being made as to the insanity of the prisoner, the issue on this question was first submitted to a jury, who found a verdict that he was sane. A motion for new trial, on this issue, was then made, and, several days subsequently, the case was called for trial on the main charge of murder. Defendant objected to going to trial, on the grounds that the motion for new trial on the issue of insanity was still undecided, and that, if the decision should be against him, he intended to appeal to the Supreme Court, and that he ought not to be tried on the issue of murder until that Court had passed on his insanity. Motion overruled.

On the trial, the following instructions, among others, were given to the jury, defendant excepting:

First—“If the testimony on the part of the prosecution satisfies you that the defendant took the life of the deceased, and if such testimony did not sufficiently manifest that the crime only amounts to manslaughter, or that the accused was justified or excused in committing the homicide, then, unless the defendant has shown circumstances of mitigation, justification or excuse, he is guilty of murder, and that of the first degree.”

Second—“ It is true, as contended for by defendant’s counsel, that, if it is once shown that the defendant was insane, his insanity is still presumed to continue, unless it was accidental and temporary in its nature, as if it was occasioned by the violence of disease.”

Defendant being convicted, appeals.