Appellant presents two questions in his motion. He insists that we should give consideration to his statement of facts, notwithstanding same was filed after the expiration of the time allowed by statute, on the proposition that he has made sufficient showing that he was unable to procure the statement of facts and have same filed within said time. We *Page 178 have carefully examined what purports to be the showing made by appellant's attorneys in this connection. The motion for new trial was overruled on December 26, 1925, and the document sworn to by appellant's attorneys as setting out their reasons for failing to have statement of facts filed merely states in general terms: "That thereafter on several occasions appellant's attorney requested of said court stenographer that he begin with the preparation of said statement of facts * * * and that said court stenographer promised that he would have said statement of facts ready." It is further stated "that finally said court stenographer was sick with the flu, or claimed to be." There is no other showing made in this regard. No affidavits or proof by any physician, or by the court stenographer himself of the fact that he was so ill as to be unable to work, are furnished, nor is there any specific or definite showing made or reason given why said statement of facts was not prepared prior to the time of such illness, if any. The showing is entirely too indefinite and general to justify us in setting aside the rule of the statute and giving consideration to such statement of facts.
The other ground of appellant's motion is that we erred in holding that he failed to exercise proper diligence to ascertain the prejudice, if any, of the juror Reese, and in holding that appellant knew of the prejudice of such juror and failed to challenge him. We have carefully considered the argument advanced by appellant in connection with the testimony heard on the motion for new trial. All of the testimony tending to show that Reese entertained prejudice against appellant, related to acts and transactions and conversations had between appellant and Reese, which facts must of necessity have been as well known to appellant as to Reese. Appellant was present during the voir dire examination of juror Reese and volunteered no information concerning the matters which had occurred between himself and Reese. We regret that this court can not lay down rules governing such cases based on the varying intelligence and knowledge of the parties who might be involved. We can not say that this appellant did not know what his duties were in the matter of telling his attorneys what he knew, and that another party charged with crime should know. We can only lay down a rule of law applicable to such cases in general and enforce same as far as we can. See Lowe v. State, 88 Tex.Crim. Rep., for extended discussion of the questions involved in this matter. We are unable to agree with either contention made by appellant, and the motion for rehearing will be overruled.
Overruled. *Page 179