The State moves for a rehearing on the ground that the pauper's affidavit made by appellant herein, was made before his attorney acting as a notary public, and attention is called to authorities holding that affidavits in certain cases, when made before interested attorneys, will be held invalid. Contra, appellant's attorney files a vigorous reply citing numerous cases by our Courts of Civil Appeals and others, holding that an attorney who is also a notary public, may not administer the oath to his client in making an affidavit involving some judicial or quasi judicial act of *Page 13 attorney, but he may take same when the act is purely ministerial. We have serious doubt as to whether such holdings are in accord with the holdings of this court, and whether same take into account a construction of Art. 713 Cow. C. P., forbidding attorneys to testify to privileged communications. However, in the instant case we prefer to base our decision of the point under discussion, on different grounds. Affidavits pro and con, made subsequent to the filing in this court of this record, appear here, and have been considered by us in determining whether appellant has been deprived of his statement of facts. Among them we find one made by Hon. J. S. Kendall who swore appellant to the pauper's affidavit in question, — from which affidavit we infer that Mr. Kendall was not an attorney of record in this case, but was employed to prepare and file this affidavit. It seems that there were some negotiations looking to getting Mr. Kendall to assist in the further appeal of the case, but same were abandoned. Whether he was such attorney as might affect his right to take the affidavit in question, seems in doubt, but we observe that no question of his right to act was raised when the affidavit was filed or brought to the attention of the trial judge, appellant then still having time to procure another affidavit and might have had his statement of facts filed within the time allowed by statute. 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. This appellant seems to have acted with promptness and diligence in trying to get his statement of facts approved and before this court. We are unwilling to concede that he should be deprived of same when there is a doubt as to the technical point now raised by the State.
The State's motion for rehearing will be overruled.
Overruled. *Page 14