
    CARROLL v. STATE.
    (No. 10107.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.)
    1. Criminal law <&wkey;l 134(3) — Where special judge elected under Rev. St. 1925, art. 1887, has apparently fully tried case, in absence of regular judge, questions as to incompleteness of statute are moot.
    Where special judge elected under Rev. St. 3925, art. 1887, has apparently fully tried case in absence of regular judge questions as to incompleteness of statute in omitting former provisions as to what powers and duties of special judge are, and as to his term, or the proper procedure in completing records in cases tried before him, are moot.
    2. Jury (&wkey;l49.
    Motion to discharge jury because wheel was improperly filled will be considered in light of statutes applicable to challenge to array in view of Code Cr. Proc. 1925, arts. 608 and 641.
    3. Criminal law <S^I 144(!4).
    Court of Criminal Appeals will presume regularity in action of trial judges, unless contrary appears from record.
    
      4.- Criminal law <@=^1115(2).
    Exception to refusal to discharge jury on ground that jury wheel was formed from wrong list cannot be sustained, in absence of any showing in record that wheel was so filled.
    <®=»For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
    Appeal fro-m District Court, Bexar County; O. M. Fitzhugh, Special Judge.
    Ted Carroll was convicted of theft, and he appeals.
    Affirmed.
    T. M. West and W. W. Walling, both of San Antonio, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMOIRE, J.

Conviction in district court of Bexar county of theft; punishment two years in the penitentiary.

There are two complaints in the record, each of which is referred to in the brief filed. The first is of the Revised Civil Statutes of Texas 1925, art. 1887, which is as follows:

“Special Judge, When. — Should the judge of a district court on the first or any future day of a term, fail or refuse to hold the court, the practicing lawyers of the court’ present may elect from among their number a special judge who shall hold the court and proceed with the business thereof.”

The remainder of the chapter in which said article is found sets out the manner in which the election shall be held, proclaimed, and recorded. It is urged by appellant that so much of the law. authorizing the election of a special judge as contained in previous statutes, and specifying his powers, terms, continuance, etc., is omitted by the codifiers; that this statute is insufficient. It is true that the codifiers did not specify what the powers and duties of a special judge are, nor when the term of the special judge should end, nor what the procedure should be in the matter of completing records in all cases tried before him, as was done in former statutes, and it might give some trouble in determining, in a proper case, in the absence of such statutory announcement, what conclusion could be reached as to the power of. a special judge after the return to the bencli of the regular occupant. These are moot questions here, and not necessary to be passed on. The'judge in this case was elected in the manner prescribed, he took the proper oath of office, and, for aught this record shows, fully tried .this case in the absence of the regular judge.

The other complaint, evidenced by a bill of exceptions,, sets out that the judges of the courts in San Antonio, after the rendition by this court of its opinion- in Atwood v. State, 257 S. W. 563, 96 Tex. Cr. R. 249, decided that their jury wheel had not been filled in accordance with the law as construed in said case, and by order jointly signed they directed that the wheel then in use be emptied and filled again by the proper officers in accordance with the law controlling such matter. This seems to have been done. The wheel was originally filled in August, 1925, presumably from the roll made up by the assessor for that year, though it is stated in the motion to quash the panel that it was filled from the 1924 “poll tax list, as was done in August, 1925.” It is provided in article 682, Vernon’s O. G. P., which is article 608, Revised Criminal Statutes 1925, that a challenge to the array of jurors must be in writing and supported by the affidavit of the defendant or some credible person, it is also provided in article 683 of Vernon’s G. O. P., samé being included in article 608 of the 1925 Code, that the judge shall hear evidence when such challenge is made and decide whether same be sustained or not. Article 716 of Vernon’s O. O. P., which is article 641 of the 1925 Code, provides that the array of jurors in cases not capital shall be challenged in the manner provided in capital cases, and the proceedings in. such case shall be the same.

While the proceeding now being discussed by us was not technically a challenge to the array, it was in legal effect identical, and we know of no other rule to apply than that it should be governed by the statutory provisions where such objection is made to the jury. In this ease appellant moved to discharge the jury because it was not legally obtained.

The order of the court overruling appellant’s; motion to discharge the jury panel does not appear in the record other than as referred to in the bill of exceptions. This court always presumes regularity in the action of trial judges, unless the contrary is made to appear by the record. In other words, there is nothing before this courF to support any contention that the jury wheel was filled in 1926 from a different list than the one used in August, 1925. This much is said for the reason that in a statement of the agreed facts which was before the court at the time he overruled appellant’s motion to quash, there appears no showing in regard to the list of jurors from which the jury wheel was filled in August, 1925. It does appear from said agreement that the assessor’s roll was made up and filed in July of said year. In the absence of a showing to the contrary, our conclusion would be that the officers in filling the jury wheel in August, 1925, used the list of voters, etc., thus made out. As we understand appellant’s contention in this regard, it is that the offi-. cers did not use the list in refilling the wheel in January,1926, which was used by them in filling it originally in August, 1925. In the absence of a showing of the truth of this contention, we are compelled to conclude that same was not sustained by the evidence heard by the trial court. We do not regard the matters of complaint at the size of the jury wheel and the condition of its contents as of that serious nature which would call for any discussion on our part.

Binding no error in the record, the judgment will be affirmed.  