The record having been perfected, the appeal is reinstated and the case considered on its merits.
Appellant seeks a reversal of the judgment on the ground *Page 24 that he has been deprived of a statement of facts. Looking to the record, it is observed that the motion for a new trial was overruled December 31, 1934, and notice of appeal given on the same date. On the 25th of February, 1935, appellant filed an affidavit to the effect that he was unable to pay for a statement of facts or give security therefor. On the 31st of March, 1935, appellant's attorney wrote a letter to the trial judge calling his attention to the affidavit. This letter was not received by the judge until the 6th of April, 1935, due to the fact that he was engaged in the trial of cases in another county of his district, and was not in the town to which the letter was addressed. Stating his reasons for declining to order the court reporter to prepare a statement of facts, the trial judge calls attention to the fact that the time for filing said statement of facts had expired at the time the affidavit was called to his attention. Under the circumstances, we think that appellant failed to use sufficient diligence. The mere filing of the affidavit was not sufficient. It was incumbent upon appellant to call the affidavit to the attention of the trial judge. Sisson v. State, 244 S.W. 1012. He made no attempt to do so until it was too late to prepare and file the statement of facts within the time provided by the statute. See Art. 760, C. C. P.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.