The district attorney has filed an unverified motion for rehearing on behalf of the State. The motion contains many averments relating to the statement of facts which can not be considered further than as they may be supported by the affidavit of the court reporter attached to the motion and made a part thereof.
Both in our original opinion of affirmance and in the opinion on motion for rehearing reversing and remanding the judgment of the lower court, reference was made to the findings of the trial judge regarding the statement of facts, which findings are incorporated in what is denominated a supplemental transcript. *Page 630 We observe now a fact which seems to preclude consideration of such findings. The trial term of court adjourned on the 5th day of February. Another term of court did not convene until the first Monday in June. The trial court's findings appear to be dated on the 16th day of May, which was evidently in vacation, and a proceeding thus had in vacation can not properly be made a part of the record in this cause. The question of delay in delivering to appellant's attorney the statement of facts must be determined by this Court upon proper affidavits filed here.
When the pauper's affidavit was filed by appellant in the lower court advising the trial judge that appellant was unable to pay for the statement of facts or give security therefor, it did not lie within the discretion of the trial court to hear a contest thereon under the present statute. See Ballinger v. State, 110 Tex.Crim. Rep., 8 S.W.2d 159; Banks v. State, 114 Tex.Crim. Rep., 21 S.W.2d 517; Brown v. State, 128 Tex.Crim. Rep., 83 S.W.2d 323; Cline v. State, 127 Tex.Crim. Rep., 77 S.W.2d 876; Williams v. State, 102 S.W.2d 228. The averment in the affidavit of appellant's attorney that when the court directed the court reporter to make the statement of facts he directed the reporter to hold same for 80 days, suggesting to appellant's wife that she make an effort to pay something to the reporter for the statement of facts, is not denied by anyone under oath, the reporter only going so far as to say in his last affidavit which is attached to the State's motion for rehearing, that he has no recollection of any such statement being made. The letter of said reporter to appellant's attorney to the effect that if he would send five dollars to said reporter it would be satisfactory is rather corroborative of the claim that said statement was made. In the affidavit of said reporter attached to the State's motion for rehearing the reporter says that said letter was only a "bluff," and claims that the delay in getting the statement of facts into the hands of appellant's attorney was occasioned by the reporter's ill health, and a mistake on the part of the express company in demanding of said attorney payment of the small express charges before delivery of the statement of facts. He denies that a delivery was conditioned on a C. O. D. charge of five dollars. It was held in Little v. State, 131 Tex.Crim. Rep., 97 S.W.2d 479, that a reversal would result in the absence of a statement of facts where the defendant and his counsel were diligent in an effort to secure same, and the failure to obtain it was occasioned by the death of the court reporter who had taken the testimony. *Page 631
It is always to be regretted when this Court is embarrassed by such questions as are here presented. In such cases we think the announcement in the opinion on rehearing in Gilley v. State, 112 Tex.Crim. Rep., 13 S.W.2d 706, should control, viz.: "One desirous of having the correctness of his trial reviewed on appeal should have the prompt and willing assistance of all officials who have duties in connection with the preparation of the record in such case, and, if there be doubt as to the exact attitude of any step in such preparation for appeal, we deem it should be resolved in favor of the accused."
Whatever may have caused the delay in getting the statement of facts into the hands of appellant's attorney until after the 90 days for filing same had expired, it is quite certain that it was not because of any fault or negligence of appellant or his attorney. They had brought themselves under the letter and spirit of the law in the prompt filing of the pauper's affidavit, and calling same to the attention of the court. Under the circumstances there seems no other course for us to pursue than to make application of the principle quoted from Gilley v. State (supra), with the expression of a hope that the same embarrassing situation will not arise often hereafter.
The State's motion for rehearing is overruled.