ON MOTION FOR REHEARING.
MORRISON,. Judge.Appellant again contends that fundamental error is reflected because the trial court failed to require a finding as to appellant’s sanity at the time of trial as well as at the time of the commission of the offense charged.
*337We cannot bring ourselves to agree with the appellant’s contention. We find in the court’s charge the following:
“On the issue of insanity you are instructed that only a person of sound memory and discretion can be held responsible for crime and that no act done in a state of insanity can be punished as an offense.
“Because of a judgment of insanity against this defendant, introduced in evidence by the defendant, dated March 14, 1950, it is presumed that he ist insane, and was insane at the time of the commission of said offense, unless the contrary should appear to the jury trying him; because of this judgment he is presumed not to entertain until the contrary appears, a sufficient degree of reason to be responsible for his acts, and the burden of proof is upon the State, where such judgment of insanity has been offered, to show by the testimony that at the time of the commission of this offense (if the defendant committed it) he was sane, and you are to determine from the evidence in this case the matter of insanity, it being a question of fact, being controlled as far as the law is concerned, by the instructions herein given you.
“Therefore, if you believe from the evidence, beyond a reasonable doubt, that the defendant committed the offense charged, and at the time of doing so, he was sane, then you will find him guilty; otherwise, the presumption being, because of such judgment of insanity, that the defendant was insane, unless you believe that the State has proved, beyond a reasonable doubt, that the defendant was sane at the time he committed the offense (if you find that he committed it) then you will find the defendant ‘not guilty’ on the ground of insanity; and in such event, the form of your verdict will be: ‘We, the jury, find the defendant not guilty on the ground of insanity.’ ”
No objections were leveled to this charge, and the question is sought to be raised for the first time on appeal.
With the above charge before them, the jury found appellant guilty and, thus, after hearing the appellant testify and hearing Dr. Dwyer testify that he examined appellant on Thursday or Friday preceding the trial and found him to be sane on that occasion, found him sane at the time of the commission of the offense. There is no testimony showing any change in appellant’s mental condition from the date of the offense, which was October 21, 1951, to the date of trial, which was November 19, 1951. If the jury had acquitted appellant on the ground of *338insanity, he being under commitment in the former trial, the court would not have needed a finding of insanity at the time of trial, in order to have appellant returned to the Austin State Hospital.
In our original opinion, we said that question of waiver was not in the case, but, rather, that appellant is now, under the peculiar facts of this case, estopped to complain that the trial did not specifically require a finding of sanity at the time of the trial.
We remain convinced of the soundness of our original disposition of this case. Appellant’s motion for rehearing is overruled.