The regularity of proceedings in trial courts is presumed by this court in the absence of a showing to the contrary. When a jury engaged in the trial of one accused of crime fails to agree and is discharged, we must presume in the absence of a showing to the contrary that a judgment of the court was rendered at the time of such discharge and that its recitals present facts which justified the court in such discharge. Woodward v. State,42 Tex. Crim. 188; Torres v. State, 91 Tex.Crim. Rep.; Dunn v. State, 92 Tex.Crim. Rep.; Rogers v. State,93 Tex. Crim. 1. We are of opinion that the explanation of the learned trial judge appended to the bill of exceptions presenting appellant's complaint of the refusal to submit his plea of jeopardy, in the absence of any controversy or legal objection thereto, must be taken by us as speaking the truth. Same states that the court discharged the jury because they could not agree, and that further consideration could not bring about any other result, and it is further stated that this conclusion was reached after full investigation into the differences of the jurors. The allegations of the plea of jeopardy, unsupported by any testimony — could not avail or cause this court to hold the explanation of the court below unwarranted.
It was proper for the learned trial judge, when appellant had entered a plea of guilty, if evidence be introduced tending to show him insane at the time of the commission of the offense, to have the plea of guilty withdrawn and a plea of not guilty entered preferably by appellant or his counsel, but if they would not, then by the court for appellant. Taylor v. State,88 Tex. Crim. 470.
As supporting his contention that we erred in upholding the charge of the trial court on insanity, and the verdict and judgment of guilty herein, which was tantamount to a finding against the claim of insanity, appellant cited originally in his brief Article 39 P.C.; Hunt v. State, 33 Texas Crim Rep. 252; Witty v. State, 75 Tex.Crim. Rep., 171 S.W. Rep. 229, and Weige v. State, 81 Tex.Crim. Rep., 196 S.W. Rep., 524, and in addition thereto in his motion for rehearing cites Witty v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1147; Morse v. State, 68 Tex.Crim. Rep., 152 S.W. Rep., 928. As applicable here Article 39 P.C. merely declares that no act done in a state of insanity can be punished. In the Hunt case, supra, a judgment was in evidence reciting that the accused had been adjudged insane on a verdict which stated that he had been in that condition for fifteen years and was growing *Page 547 worse. Other witnesses in the case also swore to present insanity. The trial court charged the jury, as was done in the case now before us, that in such case the State must prove beyond a reasonable doubt that the accused was sane at the time of the commission of the offense on trial. This was held proper, the judgment of guilty upheld and the case affirmed in an opinion by Judge Hurt. A similar charge was given in Witty v. State,75 Tex. Crim. 440, 171 S.W. Rep., 229, and the case was affirmed. The Weige case, supra, was reversed for improper argument and we see nothing in same contrary to the conclusion expressed in our original opinion. Nor do we find anything in Witty v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1147, contrary thereto. In Morse's case, supra, a reversal was ordered because the court did not instruct the jury that the burden was on the State where permanent or continuous insanity had been shown. Reverting to the Hunt case, supra, which was on facts quite similar in this regard to the instant case, we quote from the opinion of the eminent jurists who wrote for the court:
"These observations show that the theory to be determined is a question of fact merely — the condition of defendant's mind when he slew his wife. Now, if defendant was not permanently insane when he was so declared to be by the judgment, it would not be just to the State to charge the presumption that insanity is presumed to continue. In short, the presumption has no place in the case — can not be used for any purpose until the whole of the evidence has been introduced; and when this is done, the character of insanity may appear. It is true, that along with all the evidence bearing upon the question of sanity the judgment should be considered, and the main fact be determined by all the evidence in the case.
Counsel for appellant contend that the verdict is against the evidence, that insanity was shown, and that the jury should have acquitted defendant upon that ground. We concede that there is very cogent evidence of insanity; but on the other hand the proof of sanity is clearly made. The letters written by defendant regarding his wife's sickness and death, several days before he killed her, evidence not only sanity but that he was premeditating her death, and was preparing her mother and sister for that event."
Not being in accord with any of appellant's contentions, his motion for rehearing will be overruled.
Overruled. *Page 548