ON MOTION FOR REHEARING.
KRUEGER, Judge.In his motion for rehearing appellant asserts with much vigor and earnestness that we erred in holding that no objection was made by him to the competency of the witness, Will Netter. He claims that since he offered in evidence a judgment of lunacy entered by the County Court on the 22nd day of August, 1930, that this was tantamount to an objection to the competency of the witness without a formal objection. We are not in accord with his contention. By permitting the witness to testify with*621out objection to his competency, he thereby waived his objection and contented himself by requesting a special instruction to the jury to the effect that since the witness had been legally adjudged a lunatic, the presumption prevailed, in the absence of a discharge from the asylum or a judgment declaring that he had fully recovered his mental equilibrium, that his unsound mental condition continued. This rule would apply to a defendant on trial for an offense against the laws of this State but would not be applicable to a witness of whose competency the court and not the jury must first be satisfied before the witness is permitted to testify. The jury are merely the judges of the credibility of the witnesses and the weight to be given to their testimony.
We have again most carefully considered appellant’s other contention but are unable to agree with him.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.