ON APPELLANT’S motion for rehearing
DICE, Judge.In his motion for rehearing, appellant insists that his counsel could not be charged with lack of diligence in failing to invoke the aid of the court to require the court reporter to prepare the statement of facts because the court was on vacation on August 15, when the first application was made, and did not return from vacation until September 16.
A review of the record shows that the case was called for trial on June 16, 1955, and verdict was returned on June 17, 1955. Sentence was pronounced and notice of appeal given on June 27, 1955. It was not until the middle of August that counsel who attempted to secure the statement of facts was employed.
The appellant’s delay of forty-nine days from the time he gave notice of appeal to employ counsel to perfect the appeal does not show an exercise of diligence on his part to obtain the statement of facts in time to file the same within the 90 days allowed by Article 759(a), V.A.C.C.P. Appellant’s failure to use diligence to secure the statement of facts prior to August 15 might well account for the fact that it was not filed within the time provided by this statute.
Under the record, we remain convinced that diligence on the part of appellant to obtain and file the statement of facts within the time allowed by law is not shown.
The motion for rehearing is overruled.
Opinion approved by the Court.