The State has filed a motion for rehearing in connection with which it tenders a statement of facts on the main trial and also a statement of the facts heard on the motion for new trial, which we are now asked to consider. Neither of these documents is signed by appellant nor his attorney but by affidavit attached to the main statement of facts it is expressly shown that he declined to sign the same. The learned trial judge under date of June 15th certified that the parties having failed to agree to the statement *Page 152 of facts he adopts the one bearing his approval as a correct statement of facts proven. Notwithstanding this authentication bears date June 15th 1928 the documents appear to have been filed in the court below on the 14th day of June, 1928 one day preceding their approval by the trial judge. However, waiving this irregularity we are of opinion the instruments cannot be considered. Appellant gave notice of appeal on the 26th day of January. He had ninety days from that date in which to file a statement of facts. By erroneous action of the court as shown by our original opinion appellant was deprived of such statement of facts. He appealed to this court relying on the fact that he had been deprived of the evidence heard on his trial. It has been held many times that although the file mark may show that a statement of facts was filed in due time yet if this court ascertains that it was not in fact filed within the time allowed by law it will be stricken out. (See many authorities collated under Sec. 599, Branch's Ann. Tex. P. C.) Here it is not necessary to go behind the file mark. On its face the statement of facts was not filed in the lower court within the time allowed by the statute. It was not filed until one day after the reversal was announced by this court. The statute referred to (Art. 760 Cow. C. P.) is usually invoked against the defendant under the holding that a statement of facts not filed within the statutory time will not be considered. Should there be one rule for accused and another one for the State? If appellant through negligence had failed to file a statement of facts and this judgment had been affirmed for lack thereof would the court now consider a statement of facts procured and filed long after the statutory time had expired? The announcements to the contrary are too numerous and consistent to need citation. When the absence of the statement of facts is in no wise attributable to appellant but solely to the state and its officers, shall the state be placed in a better attitude than accused by this court considering a statement of facts filed too late? The right to amend a statement of facts after it has been filed in this court has been denied where it worked to the interest of the state (McConnell v. State, 85 Tex.Crim. R., 212 S.W. 498) and likewise where it worked to the interest of accused (Gherke v. State, 59 Tex.Crim. R., 128 S.W. 380). See also McBride v. State, 93 Tex.Crim. R., 246 S.W. 394; Hurd v. State,99 Tex. Crim. 388, 269 S.W. 439. We see no reason or justice for an inconsistent holding which would result from considering the statement of facts now tendered by the state in the present case. There *Page 153 is no way for us to know what questions might have been presented for review if appellant had not been denied the statement of facts and upon which denial he had the right to place his sole reliance. The opinion in Bigham v. State,36 Tex. Crim. 453 is not thought to be in conflict with this holding. The facts are not at all similar.
The motion for rehearing is overruled.
Overruled.