Manchester v. State ( 1931 )

EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garfield county on a charge of murder and his punishment fixed at life imprisonment.

The record discloses that at the time charged defendant shot and killed his wife, Louise Manchester. Defendant at the time of the homicide was about 30 years of age and bad been married to deceased for about a year. He bad formerly served some time in tbe army, but became insane in 1916 and for a time was in a government hospital for tbe insane. He was discharged in 1917. After bis discharge be followed various occupations, but for some time prior to tbe homicide was a cook. Just prior to tbe homicide bis wife bad not lived with him for some time and she was at a disreputable hotel or rooming bouse at Enid, probably engaged in part in prostitution. Defendant bad attempted to have her leave this place and live with him. On tbe day of tbe homicide, having previously procured a pistol and ammunition at a hardware store, be went to this place, procured bis wife to go out with him, and while walking along tbe street, bolding her with bis left band, be emptied tbe pistol, firing sis shots into her body. He then left tbe scene, but was soon arrested. Tbe defense was insanity. Defendant testified fully and apparently was a fairly intelligent witness. Tbe substance of his testimony as to the act of homicide was that be went to tbe rooming house where bis wife stayed, got her to go- out with him, and as they were walking along be observed that she waved to a negro porter. That he questioned her about it, and it made him so mad that be did not kno w what be did then and did not remember anything further until be was arrested. Tbe complete record of tbe government hospital relating to tbe previous insanity of defendant is in the record and some physicians testified as experts. No exceptions were taken and no complaint is made of the court’s instructions which cover fully the law of insanity.

Tbe contention is made that a witness was permitted to testify whose name was not served on defendant nor bis name indorsed on tbe information. This witness was used in rebuttal and it was not necessary that bis name be either served or indorsed. It is also' urged that the sheriff who was a witness was permitted to summon tales-men for the jury. The record shows nothing as to the summon or impaneling of the jury. It does not appear that any talesmen were summoned or used. An assignment of error not supported by the record is of no avail. Error is not presumed; on the contrary, this court will presume that all proceedings in a court of record were regular. The burden is on the defendant to show clearly the irregularity complained of and that he was prejudiced thereby.

The contention made is largely one of fact. That is, that the insanity of defendant is so conclusively shown the judgment should not be permitted to stand. While the evidence is that the jury might have concluded that defendant was insane at the time he committed the homicidal act, yet we cannot say from the record that the jury was not fully justified in finding defendant sane to the degree rendering him responsible for his criminal act.

The case is affirmed.

DAVENPORT, P. J., and CHAPPELL, J., concur.