The statement of facts was not presented to the trial judge for his signature, nor signed by him. The attorney of appellant has filed an affidavit stating that he relied on the court stenographer to present it to the district judge for his approval. The court stenographer has filed an affidavit in which he states he intended to do so, but it was filed by oversight without being presented to the judge for his approval. Judge Mullally writes to the court and says: "It was never my intention not to approve the statement of facts, and it must have been filed inadvertently without my approval, and without it being presented to me. Had I seen it I would have approved it, as it was agreed to by Mr. North and the district attorney."
This case was tried last May, and no effort made to cure this defect in the record until we received the letter of Judge Mullally dated October 30th. We are not authorized to reverse the case because appellant has been deprived of a statement of facts. His attorney must be diligent, and his diligence does not end until the statement of facts is placed in the hands of the trial judge, with request either to approve it, or if he will not do so, to prepare and file a statement of facts. This requisite of the law was not complied with, but appellant's counsel relied on the promise of the stenographer reporting the case to do so for him, and through oversight the stenographer failed to keep his promise to appellant's counsel. But the death penalty being assessed, although the statement of facts did not bear the approval of the trial judge, we have read it. Appellant married Pilar Mora; they separated, and she returned to her father's house, who lived on the Randado ranch. Appellant, after his wife's return to her father's home, also went to this ranch and stayed around there several days. One morning he went to this house, when only the women folks were present, and forced an entrance. After conversing with them a while, he shot at his wife and her mother, Santos Mora, the deceased, standing near appellant, caught him as he fired these two shots and undertook to shove him out of the house. As she did so he turned the pistol on her and shot her in the abdomen, *Page 244 inflicting the wound that caused her death. Another girl, Carmen Mora, fled the house calling for help, and he fired two shots at this fleeing girl. This is the State's case, and amply supports the verdict rendered by the jury.
Appellant's contention is that he went to the Randado ranch about six days before the shooting, and that he was drunk while there. That he got the intoxicants from Juana Mora, the mother. That he sent two children of Damiana Villarreal to the house after the beer and mezcal. Neither one of these children were introduced as witnesses, and neither does the record disclose that any process had ever been issued for them. He says on the morning of the tragedy he decided to go after the mezcal himself, and went to the house for this purpose, and did purchase two glasses of mezcal from Mrs. Mora, and claims not to recollect very well what took place subsequently to taking these two drinks. That he wanted more mezcal and they would not let him have it, and he pulled his pistol and it was accidentally fired. The deceased caught hold of him and he fell, when in the scuffle the pistol was fired three more times unintentionally and accidentally. He offered no testimony except his own that he had secured any intoxicants from Mrs. Mora, and this the State's evidence would authorize a finding that it was not true. The court in his charge presented defendant's theory of the case and instructed them: "Among the defenses in this case the defendant raises the issue of an accidental killing, and on this issue you are instructed that if the defendant did not intend to shoot Santos Mora, or to kill her, and if he and she were struggling with the pistol, and if it was discharged while they were so struggling without an intent on the part of the defendant that it should be discharged, and the shot entered Santos Mora and caused her death, then the defendant is not guilty of the offense charged, and if you have a reasonable doubt as to this issue you must give the defendant the benefit of the doubt and acquit him." So if we consider the evidence, this case should be affirmed. There is nothing in the record suggesting that the shot fired was intended for another. The State's case is that appellant deliberately turned the pistol on the girl and shot her in the abdomen. His theory is that he fell and the pistol was fired unintentionally.
The motion for rehearing is overruled.
Overruled.