The offense is rape; punishment fixed at confinement in the penitentiary for a period of fifteen years.
The indictment is regular. No statement of facts accompanies the transcript, and no bills of exception are contained therein.
The term of court at which the trial took place expired on the 15th day of September, 1923. During that term there was filed the affidavit of appellant in which he stated that he was unable to pay or give security for the costs of the appeal of his case. So far as the record reveals, this affidavit was not called to the attention of the trial court, nor was there any order made. It is required in *Page 622 Article 845a, C.C.P., that when a case is appealed and the defendant is unable to pay for the transcript of the evidence or to give security for the costs, it shall, nevertheless be the duty of the stenographer to make the transcript of his notes showing the evidence as described in Article 844b, C.C.P., and deliver it to the accused without costs to him. It is also required by the statute mentioned (Art. 845a) that as a predicate for imposing this duty, an affidavit shall be made by the accused stating his inability to pay or give security for the costs, and that "upon the making and filing of such affidavits, the court shall order the stenographer to make such transcript in duplicate, and deliver them as herein provided in civil cases, but the stenographer shall receive no pay for same." In the present matter, if the filing of the affidavit was known to the trial court, the order prescribed by the statute should have been made. Inasmuch as the record fails to show that the order was made, this court must assume that the affidavit was not called to the attention of the trial judge.
It is not improper to say that it is painful to find the record in the condition of the present one. The law contemplates that one convicted of a felony shall have the right of appeal and prescribes the procedure, making availing a transcription of the evidence to the indigent as well as the opulent individual convicted of crime. Ex parte Fread, 83 Tex.Crim. Rep.; Fennel v. State, 90 Tex.Crim. Rep., 235 S.W. Rep., 885; Ellis v. State, 85 Tex.Crim. Rep.; 213 S.W. Rep., 264; Jackson v. State, 92 Tex.Crim. Rep.; 242 S.W. Rep., 732; Sisson v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 1012.
The appellant seems to have made an attempt by filing an affidavit to secure the privilege of bringing the facts before this court for review. It is a subject of regret that there has been a failure to accord this right which the lawmakers intended he should have. This court, however, has no choice but to assume that the trial court did not know that the affidavit mentioned was filed, and finding no other matter presented for review, must order an affirmance of the judgment.
Affirmed.
ON REHEARING. June 27, 1924.