People v. Fook

Foote, C. 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.