Upon the record before this court there is but one question presented for review, namely: Did the court err in not submitting to the jury the inquiry, whether or not the defendant was insane at the time of the commission of the offense with which he was charged, as provided by sec. 4697, Stats. ? The provisions of this section pertinent to this inquiry are:

“When any person is indicted or informed against for any .offense and such person or counsel in his behalf shall, at the time and before the commencement of the trial, claim or pretend that such person,, at the time of the commission of such alleged offense, was insane or feeble-minded and for that reason not responsible for his acts, the court shall order a special plea, setting up and alleging such insanity, or feeble-mindedness,. to be filed on his behalf with the plea of not guilty; and the special issue thereby made shall be tried and determined by the jury with the plea of not guilty; . . .”

The.record of the proceedings in the case on the trial contains nothing to indicate that the defendant or his counsel, be’fqre or at the trial, claimed or pretended that defendant was insane and for that reason not responsible for his acts. The minutes of the trial court.show that no special plea of .insanity was interposed by defendant or his attorney. The paper among the files of the court, setting forth such a plea and bearing a file-mark of the clerk of the court had not been seen by defendant or the court, nor had it been submitted by defendant or his counsel for filing, but was so left with the files through the mistake of the clerk, who had prepared it for defendant’s counsel to be used by him if a plea of defendant’s insanity was to be interposed. Nor is there anything in the record tending to show that the court had any reason to suspect that defendant at the time of the commission of the alleged offense was insane and therefore not responsible for his acts. The affidavit of the counsel is not part of the record of the proceedings of the court and cannot be considered in the case. The record fails to disclose any error of the trial court in failing to submit the special issue *75of defendant’s insanity to the jury and the judgment entered in the case must stand.

By the Court. — The judgment is affirmed.