The defendant was convicted of assault with a deadly weapon, upon an information charging the crime of assault with intent to murder.

The claim made for a reversal of the judgment rendered in the premises, and from an order denying a new trial is, that the court erred in not submitting the question of the sanity of the defendant to a jury, under the provisions of section 1368 of the Penal Code, and that it should have given, instead of refusing, an instruction asked for on behalf of the defendant.

The section of the Penal Code with which it is alleged the trial court failed to comply is:—

“Sec. 1368. When an action is called for trial, or at any time during the trial, or when the defendant is brought up for judgment on a conviction, if a doubt arise as to. the sanity of the defendant, the court must order the question as to his sanity to be submitted to a jury.”

In the present case, the court, upon the trial of the defendant, allowed evidence as to his sanity after and before the commission of the offense charged, but would not give an instruction to the jury to the effect that if they believed the defendant insane at the time of trial that they should acquit him. It was proper for the court to allow such testimony to go to the jury on the trial, with a view to enable them to determine whether the defendant was insane at the time of the commission of the offense. (People v. Farrell, 31 Cal. 576 .) But it does not follow, because of this, that the court must have had a doubt of the defendant’s then sanity; for, as we have *302 seen, it refused to give an instruction that the defendant must be acquitted if he was then insane.

Judge Temple, in the case of People v. Ah Ying, 42 Cal. 21 , says: —

“The fact that evidence upon the subject was allowed to go to the jury, and that they were instructed to find a verdict that the defendant was then insane, if they were satisfied, from the evidence, that he was so, implies a doubt on the part of the court as to his sanity.”

There the learned judge found two circumstances which together implied a doubt by the court. In the present case, the most important and persuasive circumstance showing doubt in the former case is absent; that is, the granting of the instruction to the jury.

In the present case, the court evidently had no doubt that the defendant was sane; and there being no request made by him to have the question of insanity submitted, as section 1368 requires, as a separate and distinct issue from that of the defendant’s guilt or innocence of the offense charged, it did its duty by allowing the evidence to go to the jury as bearing upon the question of the sanity of the defendant at the time of the commission of the offense.

Therefore the case in 42 California is not in point here as showing conclusively that the court must have had doubt as to the defendant’s then insanity.

The evidence in the transcript is not of a kind from which we can say that the trial court either ignorantly or capriciously disregarded its force and effect in not entertaining therefrom doubt as to the defendant’s sanity. It is clear that no such doubt existed in the mind of the trial court, and we cannot say that it was its duty to have entertained such doubt from that evidence.

The instruction refused is: “You are also instructed that if you believe, from the evidence, that the defendant is now insane, you shall find him not guilty because of insanity.”

*303 “ There was no plea of insanity required.” (People v. Ah Ying, 42 Cal. 21 .)

The proof upon the matter of insanity was not admitted under any such issue as present insanity, as we have seen. No such issue was before the jury, and no such instruction was proper.

We perceive no prejudicial error in the record, and advise that the judgment and order be affirmed.

Belcher, C. C., and Vanclief, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are affirmed.