Appellant now for the first time urges that his conviction is void for want of jurisdiction on the part of the judge who tried him. We do not think so. The indictment herein was returned by the grand jury of the 89th District Court of Wichita County, and duly filed in the office of the district clerk of said county, on May 2, 1935. On January 3, 1935, the presiding judge of the 8th administrative district had made an order, which was duly entered, authorizing the several judges of the 30th, 78th and 89th District Courts to sit for each other and transact any and all business appearing on the dockets of said courts at any time; meaning of course such business as one judge of a district court might transact for another such judge under the Constitution and laws of this State. It further appears that Judge Irvin J. Vogel, judge of the 78th District Court, tried this cause, sitting in the 89th District Court of said county. We see no error in this. Appellant was tried by a duly authorized and elected district judge of this State upon an indictment regularly returned into a district court of the same county. We might observe that at no time during the progress of this proceeding, until the judgment of conviction was affirmed by this court, was any attack made upon the jurisdiction of the trial court, or the right of Judge Vogel to hear and determine the case. In such condition, even if there was any doubt of the legality of the acts of the trial court, and we think there is none, we would indulge any and all presumptions in favor of the regularity of this action. We have examined the authorities cited by appellant and do not think them applicable.
In our judgment the court's action in submitting the case to the jury on the law of malice aforethought was correct. It would have been improper for the judge himself to have passed upon the facts, which showed that deceased was killed by repeated blows upon the head by some means or instruments to the grand jury unknown, which caused his death, and to have himself undertaken to say that the killing was without malice.
We see no possibility of injury to appellant by the misuse of a word in a charge on negligent homicide, which mistake *Page 574 could have in no way caused or contributed to the refusal of the jury to find appellant guilty of such degree of homicide. As a matter of fact, appellant seems to have given no testimony suggesting that he carelessly or negligently killed deceased, but on the contrary he denied flatly that he made any assault on him.
We have examined the various contentions made by appellant in his motion for rehearing and are not able to agree with any of them, and said motion is overruled.
Overruled.