At the October Term, 1921, of the District Court for Bell County appellant was convicted of burglary, and punishment assessed at two years confinement in the penitentiary.
The trial term adjourned December 24, 1921. There are no bills of exception, in the record, and the statement of facts was not filed in the lower court until May 29, 1922, more than ninety days after adjournment. For this reason the State has filed a motion to strike out the statement of facts. This motion must be sustained unless it appears that appellant has been deprived of his statement of facts without fault on his part. We find among the papers an affidavit of his attorney dated May 9, 1922, asserting that he had just then learned for the first time that no statement of facts was in the reccord; that he had prepared one and mailed same from Rogers to the district attorney at Belton requesting him to file same with the clerk when approved by the trial judge. It is nowhere stated in the affidavit when this was done, and it does not appear that counsel ever followed the matter up, or made any inquiry relative to whether it had been received or filed. We are of opinion the diligence required to secure a perfecting of the record is entirely wanting, and the motion of the State will be sustained. *Page 358
No fundamental errors appear upon the face of the record, and the judgment must be affirmed.
Affirmed.
ON REHEARING. October, 11, 1922.