ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In the face of the circumstances developed and detailed in the original opinion and the definite declaration of one of the witnesses that the appellant was drunk, this court is not authorized to declare that the verdict of the jury finding that the appel*182lant was driving an automobile while intoxicated is unsupported by the evidence.
The statute denouncing the offense of which the appellant was convicted fixes the maximum penalty at confinement in the penitentiary for two years. It is the general rule that a verdict which has been received and approved by the trial judge and which is within the limits prescribed by statute cannot be regarded as excessive in the absence of extraordinary circumstances which are not revealed by this record. See Branch’s Ann. Tex. P. C., p. 334, sec. 655, wherein many cases are collated, including Chiles v. State, 2 Texas App., 36; Robinson v. State, 25 Texas App., 113, 7 S. W., 531; Chambless v. State, 46 Texas Crim. Rep., 1, 79 S. W., 577. See, also, Allen v. State, 114 Texas Crim. Rep., 79, 21 S. W. (2d) 527, 528; Shuffield v. State (Texas Crim. Rep.), 18 S. W. (2d) 640.
As shown in the original opinion, the alleged new evidence was not newly discovered under the terms of subdivision 6, of article 753, C. C. P., as that article has been construed by this court on several occasions. See Vernon’s Ann. Tex. C. C. P., 1925, vol. 3, p. 13, note 25. It is clear that the appellant knew facts which put him on notice of the existence of new evidence, and he exerted no dilegence to secure the attendance of the witnesses. Neither is the testimony regarded such as precluded the trial judge, in the exercise of his discretion, from overruling the motion. See Vernon’s C. C. P., supra, p. 15, sec. 26. Attached to the motion is the controverting affidavit of the sheriff of the county which strongly upholds the state’s theory that on the occasion of the alleged offense the appellant was intoxicated and supports the conclusion of the trial judge that a more favorable result would not come from another trial. See Vernon’s C. C. P., supra, p .33, sec. 35, for precedents upon the subject.
A new question, raised for the first time upon appeal, is that the indictment against the accused was presented by the grand jury of the district court of the 15th Judicial District and the appellant was tried in the 59th district. The specific point made is that there does not appear in the record the entry of an order made by the judge of the 15th District Court transferring the indictment to the 59th District Court. It appears from the record that the indictment was filed in the 59th District Court on December 2, 1930, and charged he date of the offense as of the 15th of November, 1930. It appears from the motion that both courts (the 15th District and the 59th District) we in session at the same time in Grayson county. The question presented is like that which has been before the court in several previous cases, among them, Majors v. State, 100 Texas Crim. Rep., 304, 273 S. W. 267; Bray v. State, 101 Texas Crim. Rep., 346, 276 S. W., 244." In the cases mentioned the subject has been considered and the announcement made in substance that in *183instances in which there are two district courts, each having criminal jurisdiction, situated in the same county, and the legislative provision authorizing the transfer of cases from one to the other, that it is too late on appeal to complain, as is done in the present case, that the trial is upon an indictment filed in one of the courts and the trial is had in the other. Under such circumstances, the presumption will be indulged that the proper transfer was made. See Lindley v. State, 99 Texas Crim. Rep., 85, 268 S. W., 167; Kochan v. State, 93 Texas Crim. Rep., 368, 248 S. W., 365; Waller v. State, 98 Texas Crim. Rep., 663, 267 S. W., 988.
The motion for rehearing is overruled.
Overruled.