Appellant urges that his affidavit of inability to pay costs of a statement of facts on appeal, or to secure payment therefor, as provided in Art. 760 Cow. C. P., was sufficient even though same entirely omitted to state that he was unable "to give security therefor." It was otherwise held in Kelly v. State, 155 S.W. Rep. 225. We are not inclined to hold that the use of the singular number in Art. 760, supra, wherein the accused is required to make affidavit to such "fact," should be held to permit the inference that the Legislature intended to make an affidavit sufficient which merely alleged that the accused was unable to pay the costs, or that it intended to make said affidavit sufficient when the accused merely made affidavit that he was unable to give security for such costs.
No order of the trial court directing the stenographer to prepare and deliver to appellant or his attorney such statement of facts was ever entered in this case. Appellant and his attorney make affidavit supplementary to the original affidavit of inability, seeking apparently to supply by means of such affidavits the absence of the order referred to. Appellant's affidavit of inability was filed June 5th, thirty-eight days after the adjournment of the trial term of the court below, well within the ninety day period granted appellant within which to have such statement of facts filed. The affidavits referred to as supplementary were filed August 23rd, and after the expiration of said ninety day period. Neither in them, nor in any other part of this record is it shown that diligence was used to have the stenographer make out and deliver a statement of facts. Such diligence is necessary and must appear.
Passing for a moment the question of the insufficiency of the affidavit of inability, we note that this was not a capital case, and that appellant did not see fit to ask any mandamus of the trial court to compel the stenographer to make and deliver the statement of facts. Appellant had paid counsel apparently, and no effort on their part appears to prepare or present a statement of facts. Appellant is in no position to complain of the absence of such statement of facts. Wood v. State,67 Tex. Crim. 611; Lewis v. State, 87 Tex.Crim. Rep.; Sisson v. State, 92 Tex.Crim. Rep..
We are still of the opinion that the affidavit of inability must contain all of the requirements laid down in the statute, and that the affidavit in this case does not comply with such requirements, but if *Page 634 it did, — other things would have to appear in the way of diligence before the accused could obtain any relief from the situation which appears in this record.
The motion for rehearing is overruled.
Overruled.