¶1 ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.
¶2 Appellant asks that a second motion for rehearing be granted on the proposition that the record herein does not show that the motion to substitute the indictment was made and acted upon in open court. He cites Morris v. State, 257 S. W., 899, and Farrell v. State, 66 S. W. (2d) 694. In the former appears this statement: “Upon these reasons the record should show that the suggestion to substitute had been presented in open court, and that there had been spread on the minutes of the court the court’s order of substitution.” In the opinion in the latter case substantially the same language appears.
¶3 There is nothing in article 418, C. C. P., dealing with this question, which specifies that the record shall in so many words use the language in open court, — and we did not intend to so hold in the opinion in either case mentioned. In Burrage v. State, 44 S. W., 169, the above statute was construed, and we said that the record should show that the State’s attorney had filed a formal motion setting out, (1) the loss of the indictment, (2) an exact or substantial copy thereof, (3) a statement by such attorney that same is, in substance at least, the same as the lost indictment, (4) a showing that a judgment of substitution was entered and carried into the minutes of the court. We have not intended in any case to go beyond what we there said. In both the Morris and Farrell cases, supra, the record before this court failed to show that there was any judgment of substitution entered in the trial court and carried into the minutes. Not so here. The record before us shows that a formal motion was made, and filed by the clerk; that upon hearing same the learned trial judge ordered the substitution, and that such order was entered in the minutes.
¶4*157 We know from this record that the motion was filed and acted upon during the trial term of the court below, and, — in the absence of any contest of the regularity of these matters before the court a quo, where opportunity may have been afforded the State to make the record speak all the facts, — we must presume that the hearing was openly had, and the judgment of substitution openly pronounced.
¶5 We cannot conceive that a district judge of this State, accompanied by his clerk, would stealthily and secretly, or without the presence or knowledge of appellant and his counsel, having a motion filed such as appears here, with the file mark endorsed by the clerk, — have it heard and adjudged by the court out of the presence of the accused and his counsel and without their knowledge, especially where counsel happens as in this case, within the knowledge of this court, to be diligent both in preserving and presenting errors occurring, — without a protest loud and long, when first confronted in the trial court with the fact of such substitution, which protest would have been set forth in as many bills of exception as might be deemed necessary to bring the wrongs complained of here for review.
¶6 Not being able to agree with appellant, leave to file his second motion for rehearing is denied.
¶7 Denied.