ON APPELLANT’S MOTION FOR REHEARING.
DAVIDSON, Judge.Appellant insists that we erred in concluding that the substitution of one judge for another during the trial of his case did not operate to deprive him of the right of trial by jury as guaranteed by the Constitution and laws of this State.
Appellant challenges the correctness of our conclusion that the record affirmatively reflects he agreed to the exchange or substitution of the judge.
The record has been again examined upon this question, and we remain convinced of the correctness of our original finding.
Whether appellant did or did not agree to the exchange by the judges is immaterial, for if the substitution of one judge for another during the trial operated to deny to him the right of trial by a jury he could not waive that right. If the substitution was not an assential element of the right of trial by jury, appellant cannot be heard to complain because of the absence of any objection thereto during the trial of the case.
The question before us is whether “trial by jury” requires that the judge presiding at the beginning of a trial preside throughout the trial.
*294There can be no doubt but that “trial by jury” as known to the common law is here controlling except where changed, modified, or abrogated by the statute law of this state.
At common law, trial by jury comprises three essential elements. These are: (a) that the jury be comprised of twelve men; (b) that the trial should be in the presence and under the superintendence of a judge having power to instruct the jury as to the law and advise them with reference to the facts; and (c) that the verdict should be unanimous. Patton v. United States, 281 U. S. 276, 50 S. Ct. 253, 74 L. Ed. 854.
We are concerned, here, only with the second of these elements — that is, that the trial be in the presence and under the supervision of a judge.
Appellant contends that this means the same judge — that is, the trial must be in the presence and under the supervision of the same individual sitting as the judge throughout the trial, and that the substitution of that individual for another has the effect of denying a trial by jury.
Appellant has direct authority supporting his contention in the case of Freeman v. United States, 227 Fed. R. 732, by the Circuit Court of Appeals for the Second District, in 1915. The conclusion there expressed was:
“. . . that in a criminal case trial by jury means trial by a tribunal consisting of at least one judge and twelve jurors, all of whom must remain identical from the beginning to the end. It is not possible for either the government or the accused, or for both, to consent to a substitution either of one judge for another judge, or of one juror for another juror. The continuous presence of the same judge and jury is equally essential throughout the whole of the trial.”
The Freeman case was a conviction for a federal offense. The rules governing a trial in the federal courts therefore applied. The conclusion expressed was based upon the rules at common law. The holding requiring the continuous presence of the same judge throughout the trial was based upon the proposition that he occupied the same relation to the case, in so far as substitution was concerned, as did any member of the jury. A substitution of one juror for another not being allowed, the conclusion followed that neither could' one judge be substituted for another.
*295Has the common law rule been abrogated, changed, or modified by the laws of this state? Our statutes require that the jury in a felony case be composed of twelve men (Art. 578, C. C. P.) and that the verdict must be unanimous (Art. 687, C. C. P.) So then, these two essentials of the common law definition of trial by jury have been expressly adopted by the statutes of this state. As to these, we are governed not by the rule at common law but by the statutes of this state.
As to the presence and supervision of a judge at the trial, we note that both at common law and under federal procedure the trial judge was not only the judge of the law but also had authority to advise the jury as to the facts.
According to our statutes (Art. 658, C. C. P.), the trial judge controls the law of the case but is expressly prohibited from “expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the Jury.”
Thus one of the rights accorded to a judge at common law— that is, the right to advise the jury with reference to the facts— has been expressly denied by a statute of this State.
The right of a judge at common law to advise the jury with reference to the facts — that is, to comment upon the facts— was, no doubt, a compelling reason why the same judge was required to preside throughout the trial. Obviously, no such reason exists under the laws of this state.
Finally, then, is the exchange of benches by judges in this state controlled by the statute laws so as to abrogate the common law rule?
Art. 5, Sec. 11, of the Constitution of this state, provides, among other things, as follows:
“And the District Judges may exchange districts, or hold courts for each other when they deem it expedient, and shall do so when required by law.”
This constitutional provision was, in effect, enacted into statute, by Art. 1916, R. C. S., 1925, which reads as follows:
“May alternate, etc. — A judge of the district court may hold court for or with any other district judge; and the judges of *296such courts may exchange districts whenever they deem it expedient.”
Under the provision of the constitution, as well as the statute, it has been long the holding of this court that judges may agree to exchange benches or one judge sit for another. Johnson v. State, 61 Tex. Cr. R. 104, 134 S. W. 225; Hart v. State, 61 Tex. Cr. R. 509, 134 S. W. 1178; Petre v. State, 112 Tex. Cr. R. 459, 17 S. W. (2d) 42.
In addition to the constitutional and statutory provision above mentioned, the legislature has expressly provided for the holding of courts by one district judge for another. Administrative Judicial Act, Art. 200a, Vernon’s Civil Statutes.
The expression, “when they deem it expedient,” as contained in the constitution and in the statute above mentioned, confers upon district judges broad discretionary powers to exchange benches or hold court for each other. No limitation as to time, place, or occasion when the exchanges of benches might occur has been fixed. So if district judges deem it expedient to exchange benches during the trial of a case, that power has been conferred and their action in so doing becomes reviewable only to determine if an abuse of discretionary. power has occurred.
From what has been said, it is apparent that the common law rule requiring, that the same judge preside throughout the trial of a felony case has been expressly abrogated by the constitution and statutes of this state.
As applicable to the trial of felony cases in this state, then, the elements essential to constitute a “trial by jury” are (a) a jury of twelve men, (b) a judge qualified as and having the powers of a district judge presiding over the trial, and (c) a unanimous verdict.
Appellant’s trial was in accordance with these essential elements. He was not, therefore, denied his constitutional right of trial by jury.
At appellant’s insistence, the facts have been again reviewed. We are unable to reach the conclusion that the jury was without authority in law to reach the conclusion that it did.
Appellant’s motion for rehearing is overruled.
*297Opinion approved by the Court.