Fook

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…

I think it was the duty of the court, when the deputy sheriff testified he believed the defendant to be insane, to suspend the trial and order the question of his sanity to be submitted to a jury. The deputy testified that he was the jailer, and had observed the actions and language of the defendant during the time of his imprisonment in the county jail, and believed him to be insane. This was sufficient to create the doubt provided for by the provisions of section 1368. I do not mean to say that in every case where a witness testifies that he believes the defendant to be insane, the court must order the question of his insanity to be submitted to a jury. The defendant in nearly every case might be able to procure a witness who would testify to his insanity. Each case must depend upon its own peculiar circumstances. Here an officer of the state,— the defendant’s keeper,—without any interest whatever in the result of the prosecution, and having had opportunity for two months to converse with and observe the actions of the' defendant, testified that he believed the defendant to be insane. There was other evidence, uncontradicted, which tended to show that the defendant Was insane…