The opinion
CATES, Judge
(concurring in affirmance).
After the majority and dissenting opinions were filed, a suggestion was made by the Attorney General that shortly after arraignment the trial court committed Autrey to Bryce’s Hospital for observation.
Not until September, 1966, did the hospital superintendent certify him back to the circuit court. These matters were omitted from the appellate record.
The trial judge was entitled to take judicial notice of the records of his court in denying Autrey’s motion to abate. Free-land v. State, 43 Ala.App. 406 , 191 So.2d 245 . His reason for denial was valid. I am glad to have it recorded.
The Seventh Circuit opinion, Worthington v. United States, 1 F.2d 154 , quoted from in the majority opinion, has been last cited by that Court of Appeals in United States v. Ettelt, 7 Cir., 334 F.2d 813 . There the prisoner had no power to come to court. That principle, I think, controls where he is mentally unfit to stand trial. Conviction of a lunatic is a nullity, iv Bl. Com. 24; Yates v. Wainwright (Fla.), 151 So.2d 832 ; Ex parte Lee, 248 Ala. 246 , 27 So.2d 147 ; Code 1940, T. 15, § 428.
Moreover, on the basis of this suggestion, I infer that appointed counsel was importuned by his client. 4 His decision to submit the client’s request to the trial judge was the correct choice. He is to be commended.
Accordingly, I herewith modify my former opinion so as no longer to show a dissent. I now vote to affirm the judgment of conviction.
. This is borne out by Autrey’s brief ' wherein he made here no claim of error because of the ruling below. [Autry in open court moved to perfect his appeal pro se.]