At a former day of this term appellant by affidavits filed and orders entered showed that the judge trying the cause had ordered the court stenographer to make out a statement of facts as required by law in capital cases, but said stenographer had failed to do so, and we entered an order requiring that he comply with the order of the district judge. He has filed an answer, together with a transcript of a portion of the testimony only, showing that the testimony of one witness for the State, Dr. K.W. Field, and four or five witnesses for the defense, including the testimony of defendant himself, had not been transcribed because his note-book had been lost and could not be found after diligent search.
Section 14, of chapter 119, Acts Thirty-second Legislature, provides that in all cases where the court is required to appoint an attorney to represent the defendant in a criminal action, the official stenographer shall be required to furnish the attorney so appointed by the court, if an appeal is prosecuted from a judgment of conviction, with a statement of the evidence adduced on the trial.
Article 547 of the Code of Criminal Procedure provides that in all capital felonies, if a defendant has no counsel the court shall appoint one or more attorneys to represent him. Pennington v. State, 13 Texas Crim. App., 44; Gutierez v. State, 47 S.W. Rep., 372.
In this case the appellant was charged with a capital felony, and the court appointed counsel to represent him, who have been diligent in their efforts to get the court to have the official stenographer comply with this law. And when he failed in the trial court, he came to this court and asked that we see that the law was complied with. We have done all that is in our power, but the stenographer says he has lost a portion of his notes, and it is impossible for him to comply. If trial courts, in cases of capital felonies, will not compel the officers of his court to comply with the law, there is nothing left for us to do but to reverse and remand the case. Our law is jealous of the rights of those of its citizens where the State is seeking his life as a penalty for crime alleged to have been committed, and they have placed safeguards in the law for his benefit. We trust no other trial judge will permit his official reporter to ignore this law, where a defendant is on trial for his life. *Page 355
Because appellant and his counsel through no fault of theirs have been deprived of a statement of facts this case is reversed and remanded.
And as the court stenographer states he has done his utmost to comply with the orders of this court, and his disobedience in the first instance was to disobey the orders of the trial judge, we will only assess as against him the punishment of paying the costs of issuing and serving the process on the motion herein, leaving it to the trial judge to administer to him such punishment as he deems advisable for disobeying his orders.
The judgment is reversed and the cause remanded.
Reversed and remanded.