On the original submission of this case, we affirmed the judgment of the trial court because *Page 628 the record was before us without a statement of facts. In his motion for rehearing, duly verified, appellant charges that on February 5, 1937, the court overruled his motion for new trial; that he gave notice of appeal to this Court and on the same day filed his pauper's affidavit requesting the court to direct the court reporter to make a narrative statement of the facts and deliver it to him, since he was unable to pay for the same or give security therefor.
It appears from the affidavit of appellant's attorney that upon the filing of the pauper's affidavit, the trial court invited the reporter to contest said affidavit; that upon the hearing thereof, the court directed the reporter to make a narrative statement of facts and hold it for 80 days in order to give appellant time to make some payment thereon. At the end of the 80-day period, the reporter forwarded the statement of facts by express to the appellant's attorney in Houston, to be delivered upon the payment of five dollars. The attorney declined to pay the amount as shown by a copy of a delivery sheet of the express company attached to the motion bearing date May 4, 1938. By reason thereof, the statement of facts was not delivered to appellant or his attorney until 96 days after notice of appeal, which was too late to be filed within the time prescribed by law.
The clerk of the trial court has forwarded to this Court certified copies of the trial court's findings, together with an affidavit of the court reporter, to the effect that the reporter made a statement of facts and forwarded the same by express to the appellant's attorney in time to have it examined, approved and filed with the clerk of the trial court within 90 days. Presumably this is intended as a supplemental transcript from which it appears that the court found that the facts stated in the affidavit of the reporter are true, and further found that the statement of facts was never presented by the appellant or his attorney for approval.
The reporter's affidavit is more a statement of a conclusion than a statement of the facts as it relates to the time of sending it by express to the appellant's attorney and is silent as to whether it was sent subject to a charge of five dollars.
Section 6 of Article 760, C. C. P., reads as follows: "When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such *Page 629 affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant."
In the case of Williams v. State, 102 S.W.2d 228, this Court, speaking through Judge HAWKINS, said: "We are of the opinion that under this section of the law there is imposed a mandatory duty upon the trial court to make the order requiring the court stenographer to prepare the transcript and a mandatory duty likewise upon the stenographer to do so."
It will be noted that no contest of the affidavit is provided by the statute and the matter is not left to the discretion of the court as to whether he will require the stenographer to make a transcript without charge or for partial charge to the defendant. The court was not authorized by law to direct the reporter to hold the statement of facts for 80 days, nor was the reporter legally authorized to require the appellant or his attorney, as a condition precedent to its delivery, to pay him five dollars. When the reporter sent the statement of facts by express with a $5.00 charge as a condition precedent to its delivery, he failed to comply not only with the court's order but with the law; and when he declined to release it without the payment of the charge until after the time prescribed by law within which it might be filed had expired, he unlawfully deprived appellant of his statement of facts.
Since the appellant has been deprived of his statement of facts without fault or negligence on his part, the motion for rehearing will be granted, the order of affirmance set aside, and the judgment of the trial court reversed and the cause remanded. It is so ordered.
ON STATE'S MOTION FOR REHEARING.