Appellant, King David Durham, prosecutes this appeal from his conviction of murder in Ware County. For this offense he was sentenced to life in prison.
On the morning of March 9, 1976, shortly after 3 a.m., appellant came to the apartment of a neighbor in Waycross and stated that he had killed his wife. Appellant requested that the neighbor shoot him. When the neighbor declined to do so, appellant left. The neighbor called the police.
A police officer, responding to the call, arrived in the area and found the appellant walking away from the scene of the crime. When stopped by the officer, appellant told him that he had killed his wife. The officer, in the company of the appellant, returned to appellant’s apartment where they observed the body of a black female with a knife handle protruding from the chest. Appellant was placed under arrest at this time and advised of his constitutional rights.
The entire blade (seven and one-half inches) of the knife was in the chest of the victim. The body had suffered two stab wounds which had penetrated the lungs and an artery. A fractured skull, caused by two blows to the head, was also discovered.
Appellant admitted killing his wife. Prior to trial, appellant entered a special plea of insanity. Appellant later withdrew that plea, but stood for trial on the ground of not guilty by reason of insanity.
In support of his plea of insanity, appellant presented the testimony of numerous witnesses. Prior to the trial, appellant had been taken to Central State Hospital where he was examined by a licensed forensic psychiatrist specializing in treatment of the criminally insane. That psychiatrist testified that the appellant lacked both the ability to distinguish right from wrong and the ability to control his actions at the time of the homicide. A staff psychiatrist for the Ware County Mental Health Clinic also testified that appellant did not know the difference between right and wrong. The county physician testified as to his opinion that appellant was psychotic. *698 Other witnesses for the defense testified as to appellant’s unusual activities at the time of the killing. Despite this testimony, however, the jury found appellant guilty of murder, and he received a sentence of life imprisonment. We affirm.
1. Appellant enumerates as error the failure of the jury to return a verdict consistent with the evidence of appellant’s insanity. Such a contention can arise only from a misunderstanding of the jury’s options in passing upon evidence of appellant’s sanity.
Georgia law presumes the sanity of an accused. Code Ann. § 26-606 (Ga. L. 1968, p. 1270);
Carter v. State,
When the defense of insanity has been made under the general plea of not guilty, the defendant is still presumed sane, except in the limited circumstances noted above. The defendant bears the burden of showing, by preponderance of the evidence, that he was not mentally responsible at the time of the alleged crime.
State v. Avery,
The appellant here entered his trial with a presumption of sanity. He presented evidence, including
*699
the testimony of experts, that at the time of the murder he was both unable to distinguish right from wrong and, even if he were able to so distinguish, he could not control an impulse to do wrong. The jury rejected this contention, and it was within its province to do so. In Georgia, presumptions of sanity do not dissipate on the presentation of evidence to the contrary.
Johnson v. State,
The jury’s determination as to appellant’s sanity was also supported by evidence which, although less than overwhelming, is consistent with its verdict. Police officers testified that, at the time of his arrest, the appellant was coherent and indicated comprehension of his Miranda rights. Although despondent, he was communicative with the officers and correctly gave his name and address. Appellant was at all times aware of what had transpired. His request to a neighbor to shoot him because he had just killed his wife is not completely consistent with allegations that he did not know right from wrong. These facts, in conjunction with the continued presumption of sanity, were sufficient to support the jury’s verdict.
2. Appellant enumerates as error the denial of his statutory right to the individual voir dire of each potential juror. Appellant attempted to ask if each juror would be able to follow the instructions of the court as to the insanity issue, even if that instruction were contrary to an individual’s belief of what the law should be. The court directed that the question be asked of the jurors as a group, and appellant acquiesced in that order. Proper objection was not made to preserve the issue for appeal, and we find no error.
3. Enumeration of error 8 is the denial of the appellant’s request to examine a written police report, which was not in the courtroom, and from which the state’s witness, who had written the report, was testifying from memory. Enumeration of error 22 is the trial judge’s failure to have the written report placed under seal for further inspection as requested by defense counsel, the *700 district attorney having no objection. The report is not in the record on appeal.
(a) Even assuming that the defendant was entitled to examine the report under these circumstances, neither at trial nor on appeal has the appellant alleged the injury which he suffered as a result of this denial. (As to the right to examine the report,
see Shouse v. State,
The trial judge treated the defendant’s request as a "Brady motion,” examined the report in camera, and ruled that he found nothing exculpatory therein. In Brady v. Maryland,
(b) The appellant cannot now be heard to complain that the report was not in fact sealed in spite of the trial judge’s apparent agreement to do so and the prosecution’s lack of objection thereto. If this was not thereafter done, defense counsel should have persevered and insisted that it be done. His failure to do so amounted to a waiver.
4. Appellant enumerates as error the failure of the court to grant a mistrial on its own motion when a previously undisclosed police report was first discovered and then ruled inadmissible. We find this enumeration to be groundless. Appellant made no objection to the refusal to admit this report. Appellant made no such request for mistrial at the time of discovery nor did he state to the trial judge the prejudice resulting to him from nondisclosure. Hicks v. State, supra.
*701
5. Appellant enumerates as error the sustaining of the district attorney’s objections to questions regarding treatment to be given appellant in the hospital if found not guilty by reason of insanity. Such information is not pertinent to the jury’s determination of guilt or innocence
(Hulsey v. State,
6. Appellant enumerates as error the ineffective assistance of counsel which resulted from the failure of counsel to file a challenge to the array of the grand jury. We find no validity to this enumeration.
In
Sanders v. State,
The proper method for raising objections to the composition of the grand jury is a challenge to the array before the indictment is returned. One exception to this rule arises where the defendant has no knowledge of the illegality of composition prior to indictment.
Estes v. State,
Faced by this clear rule of Georgia law, appellant has attempted an "end run” by alleging ineffective assistance of counsel in failing to object to the grand jury composition. In
Barrow v. State,
7. The other enumerations of error have been reviewed and found to be without merit.
Judgment affirmed.