Appellant predicates a motion for rehearing upon the proposition that the trial court erred in not sustaining appellant's objection to receiving the testimony of the witness Mrs. Damron on the ground that she was incompetent to testify. *Page 41
As we understand appellant's position, he is not now claiming that said witness did not exhibit her competency in detailing the facts intelligently before the jury, but solely upon the ground that after appellant had introduced before the trial judge the order of the county court appointing a guardian for Mrs. Damron, and the affidavits of the two physicians shown in our original opinion the trial judge heard no evidence as to the then mental status of the witness, but overruled appellant's objection after merely observing the witness.
It probably would have been more orderly had the trial judge examined the witness on voir dire to test her competency before permitting her to testify before the jury. After all, the question of the witness' competency was a matter for the court to determine. His qualification to the bill complaining of this matter follows:
"* * * in the opinion of the Court the written testimony offered did not show a final judgment of insanity based upon a trial for insanity, and the Court did not find her to be insane based upon said writings, and observed the lady and listened to her testimony and found her not to have been insane when she testified nor when the events about which she testified occurred; and found that she gave an intelligent and understandable account of these events, and her statements were corroborated by the defendant's own testimony and by his written statement admitted in evidence. The testimony of the defendant was that he obtained the money and jewelry, and this, with his confession established the corpus delicti. The fact that defendant obtained her property was not in dispute.
"The question again came up on the hearing of the motion for new trial, and the Court is satisfied that she was a competent witness under the statute."
If the trial judge, in the absence of the jury, had heard the witness recite the facts, and then held her competent to testify, and the witness had then related the same facts before the jury, we would arrive at precisely the same place we find ourselves under the court's qualification.
After again examining the record, and the authorities cited, we conclude that the motion for rehearing should be overruled, and it is so ordered. *Page 42