
    HOOPER v. STATE.
    (Court of Criminal Appeals of Texas.
    April 19, 1911.)
    1. Judges (§ 16)—Special Judge—Powers.
    The election of a special judge to hold a term of the county court is expressly authorized by article 1132b, added to Rev. St. 1895 by Acts 25th Leg. c. 8, so that a trial before such special judge is before a competent tribunal.
    [Ed. Note.—For other cases, see Judges, Dec. Dig. § 16.}
    2. Criminal Law (§ 1144)—Findings—Re-view—Presumptions.
    Where a jury is waived, and the case submitted to the court, which finds accused guilty, the court on appeal must presume that the trial court considered all theories of the case, and found as a fact against accused’s contentions.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1144.]
    3. Criminal Law (§ 1158)—Findings—Re-view.
    A conviction by the trial judge, who heard the evidence, will not be disturbed on appeal, when supported by evidence.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1158.]
    Appeal from Shelby County Court; J. M. Sanders, Special Judge.
    Perry Hooper was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    D. M. Short & Sons, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes'
    
   HARPER, J.

In this case appellant was charged with unlawfully carrying on and about his person a pistol. He was tried by the court without the intervention of a jury, found guilty, and his punishment assessed at a fine of $100.

1. There are but two errors assigned— one that he was not tried by a competent tribunal. We suppose this relates to the election of a special judge to hold that term of county court. Article 1132b, added to Rev. St. 1895 by Acts 25th Leg. p. 7, provides for the election of special judges of the county court in cases similar to this, and this ground presents no error.

2. In the other, he contends that the evidence wholly fails to show a guilty intent, and is insufficient to sustain the judgment; in his brief citing Baker v. State, 134 S. W. 686, Miles v. State, 52 Tex. Cr. R. 561, 108 S. W. 378, 124 Am. St Rep. 1106, and similar cases. In those eases it will be noted that it was held that it was proper for the court to submit this issue to the jury in an appropriate charge, where the evidence raises it, and special instructions are requested. In this case the evidence clearly established that appellant had the pistol. His evidence raised the issue of innocent intention, and that he merely had the pistol to deliver to another at the request of a third person. Had the court in the cases cited submitted the issue to the jury, and they found against the contention, this court would not have disturbed the verdict. Where a jury is waived, and the case submitted to the court, we must presume that the court took into consideration all theories of the case, and found as a fact against appellant’s contention.

There is evidence to support the judgment, and while his explanation, if true, would be a defense, yet, in view of the fact that the trial judge, who heard the evidence and saw the witnesses, found adversely to him, we do not feel inclined to disturb the judgment.

The judgment is affirmed.  