Now comes defendant and moves this Court for a statement of facts. We respond as follows:

Defendant was indicted by the Mobile County grand jury for burglary in the second degree. He entered a plea of not guilty and not guilty by reason of insanity. He was tried before a jury and convicted. The sentence was fixed at ten years.

As we understand the record, defendant at nisi prius was represented by employed counsel. However, on this appeal he established indigency and the Court appointed counsel to represent him. The same lawyers who represented him at nisi prius represent him on this appeal.

Defendant, just prior to trial, made an oral motion for mental examination by a psychiatrist. The trial court, without the aid of a jury, heard the motion. No demand was made for a jury. (R. 25, 26, 27).

Defendant took the stand and testified at length, on direct and cross. (R. 27-32).

At the conclusion of the hearing the Court made a finding and order as follows:

“The Court is of the opinion in observing the defendant that he is intelligent, he is aware of what he is doing, is a condition — from the observation of the Court — to assist counsel and he is competent in the opinion of the Court to stand trial at this time. So, that would be the ruling of the Court.

“Now, are you going to note an exception to the Court’s ruling?

“Mr. HANLEY: Yes, sir.

“THE COURT: All right.”

On the merits, it appears from the State’s evidence that Sammy Brown, a Mobile police officer, responded to a burglar alarm at English Drug Store (R. 46). The owner went to the store and opened the door for Officer Brown. They found the defendant inside the store with drugs and matches on his person. Defendant did not take the stand before the jury.

After the State rested defense counsel moved for a mistrial on the ground that defendant had a right to have the jury *716determine whether he was competent to stand trial (R. 61). The motion was denied.

Petition granted for statement of facts. Application for rehearing overruled.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

APPLICATION OVERRULED.