The appeal in this case is from a judgment of conviction in the court a quo of murder of the second degree, and a penalty of fifty years in the penitentiary.
We find in the record, in lieu of a statement of facts, the following, after stating the number and style of the cause, viz.: “ In this case accused was defended by Mr. Thomas, a freedman, and Mr. Kanada, both of whom reside in Burton. Soon after the verdict was rendered they left the court. The motion for new trial was made by Shepard '& Searcy, neither of whom heard the testimony given in the cause. They are consequently unable to draw a statement of facts. The county attorney declines to draw one. The judge, having heard several similar cases in rapid succession, says that he cannot, unaided, draw a satisfactory statement of the facts. The attorneys who made the defence cannot be had, and left, so far as we are able to find out, no memoranda of the facts proven on the trial. This statement is *175made, to show why no statement of facts accompanies the recordsigned by the county attorney, and by Shepard & Searcy for defendant, and certified and approved by the signature of the judge. This statement was made and filed the eighteenth day of October, 1879, the day on which the court adjourned.
With regard to a statement of facts, the statute provides that, “If a new trial be refused, a statement of facts may be drawn up and certified, and placed in the record, as in civil suits. Where the defendant has failed to move for a new trial, he is nevertheless entitled, if he appeals, to have a statement of the facts certified and sent up with the record.” Code Or. Proc., art. 784.
“After the trial of any cause, either party may make out á written statement of the facts given in evidence on the trial, and submit the same to the opposite party or his attorney for inspection. If the parties or their attorneys agree upon such statement of facts, they shall sign the same, and it shall then be submitted to the judge, who shall, if he find it correct, approve and sign it, and the same shall be filed with the clerk during the term.” Rev. Stats., art. 1377.
“ If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall from his own knowledge, with the aid of such statements, during the term make out and sign, and file with the clerk, a correct statement of facts proven on the trial, and such statement shall constitute a part of the record. ’ ’ Rev. Stats., art. 1378.
Art. 1379. “ The court may, by an order entered upon the record during the term, authorize the statement of facts to be made up and signed and filed in vacation, at any time not exceeding ten days after the adjournment of the court.”
Under the circumstances of this case, the court should have authorized the statement of facts to be made up and *176signed in vacation, and should have ordered the county attorney and the attorneys who represented defendant on the trial to make out and submit to him their respective statements within ten days, under pain of being held in contempt. Why the county attorney should refuse to make out a statement we cannot imagine. It is the duty of the prosecuting officer to furnish every facility to the court to enable it to have its criminal records full and complete, so that they may speak the truth and present the proceedings in a manner that its action can be easily understood and properly revised when its correctness is called in question on appeal. He should also desire to so aid the court in administering the law as that no offender, be he never so friendless or criminal, shall be deprived of any right which the law in its wisdom and humanity has accorded him. We múst presume that a consideration of the facts adduced in evidence is essential to a proper understanding of almost every case on appeal; and the law having wisely provided it as a right, a defendant should not be deprived of it if he desires its •advantages and they can be made available to him. Trammel v. The State, 1 Texas Ct. App. 121; Longley v. The State, 3 Texas Ct. App. 611.
Though the defendant was not found guilty of murder in the first degree, we cannot pass over the charge of the court in its application of the-law upon that branch to the facts in the case. In his charge the judge “shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony.” Code Cr. Proc., art. 677. And again: “ It is beyond the province of the judge sitting in criminal causes to discuss the facts,” etc. Code Cr. Proc., art. 678. The portion of the charge alluded to is obnoxious to both these provisions.
Again, the charge upon self-defence is objectionable. After stating the rules of self-defence with sufficient fairness and accuracy, this addition or qualification is made : But the jury must be satisfied from the evidence that the *177killing was in fact in self-defence, arid not colorably so.” To our minds this qualification destroyed all that previous portion of the charge which permitted defendant to invoke the right of self-defence against reasonable apprehensions arid expectations of death or some serious bodily injury, and was consequently erroneous. Horbach v. The State, 43 Texas, 258; Marnoch v. The State, 7 Texas Ct. App. 269; Pharr v. The State, 7 Texas Ct. App. 472; Richardson v. The State, 7 Texas Ct. App. 486.
For the reasons indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.