
    SALAZAR v. STATE.
    (No. 9693.)
    (Court of Criminal Appeals of Texas.
    Oct. 14, 1925.
    State’s Rehearing Granted Nov. 11, 1925.)
    1. Criminal law &wkey;>l086(3) — Record on appeal must show taking of oath by special judge as shown by minutes.
    Where prosecution for crime is tried before a special judge, record on appeal from conviction must disclose that such judge, before entering on his duties, took the constitutional oath of office, and that such fact was entered on the minutes; in the absence of which showing the judgment will be reversed.
    On State’s Motion for Rehearing.
    2. Crimina! law <©= 1144(18) — In absence of evidence, order overruling motion for new trial presumed not abuse of discretion.
    In the absence from the record on appeal of evidence on which trial court overruled motion of accused for new trial on ground that he was misled in entering plea of guilty, it will be presumed that trial judge did not abuse his discretion.
    Appeal from District Court, Medina County ; L. J. Bracks, Special Judge.
    Fortino Salazar was convicted of assault to murder, and he appeals.
    Affirmed.
    T. B. Monroe, of San Antonio, for appellant. Sam D. Stinson, State’s Atty., of Green-ville, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is assault to murder; punishment fixed at confinement in the penitentiary for a period of seven years.

From the transcript before us, it appears that the trial took place before a special judge. The statute requires that, before a special judge shall enter upon his duties,' he shall take the oath of office required by the Constitution, and his selection and the fact that the oath of office has been administered to him shall be entered upon the minutes of the court as a part of the record in the cause. Upon this subject the present record is silent. That it is essential that the oath of office be taken and that the record reveal it has often been declared by this court. See Smith v. State, 24 Tex. App. 290, 6 S. W. 40; Reed v. State, 55 Tex. Cr. R. 138, 114 S. W. 834; Dawes v. State, 87 Tex. Cr. R. 452, 222 S. W. 560.

As the matter is presented, we have no choice but to order' a'reversal of the judgment, which is accordingly done.

On State’s Motion for Rehearing.

-Accompanying the state’s motion for rehearing is a certified copy correcting the record. There is an absence of a statement of facts. -None of the rulings of the trial court are brought up for review by bills of exception. The indictment appears regular.

In the motion for new trial appellant claims that he was misled in entering a plea of guilty. This is controverted. The court, on hearing the evidence, overruled the motion. The evidence which was before the court is not brought to this court for «review. In its absence, the presumption must be indulged that in overruling the motion the learned trial judge did not abuse his discretion.

The state’s motion for rehearing is granted, the order of reversal is set aside, and the judgment is affirmed.  