Schmitt

Appellant was charged with the murder of Mrs. Charlotte Gardemeyer, alleged to have been committed November 17, 1893, and was found guilty by the jury of murder in the first degree, with the penalty of imprisonment for life.

The fact that defendant committed the homicide was not controverted, the defense being that he was insane; and this appeal is from the judgment and from an order denying a new trial.

*50 The motion for a new trial is based upon alleged errors in the admission and exclusion of evidence, and upon instructions given and refused, and upon a statement of law made to the jury by the district attorney during his argument.

The errors specified in the record are very numerous. Appellant’s brief discusses only a few of them, and these we shall first notice.

1. That the court erred in giving instruction number 26, the material part of which is as follows: “And as I am about to conclude my instructions to you, it may aid you if I give a brief summary of the principal matters you must consider and decide. You are not to consider whether or not the defendant is insane at the present time, but you are to consider him as now sane. A person charged with crime cannot be…