Offense, the unlawful sale of intoxicating liquor; penalty, one year.
No statement of facts accompanies the record. The question is attempted to be raised that appellant was deprived of a statement of facts in the Court below. We find in the transcript an affidavit purporting to have been made under Art. 760, Subdivision 6, C. C. P., in part in the following language:
"Affiant states that he is too poor to pay said Reporter for preparing said statement of facts, and that he has no money with which to pay for same and is not able to pay for a transcript of the testimony." *Page 632
The language of Art. 760, supra, which relates to this matter, is as follows:
"When any felony case is appealed and the defendant is not able to pay for a transcript of the testimony or give securitytherefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant."
The above purported pauper's affidavit is fatally deficient in that affiant nowhere states in same that he was unable to "give security therefor." It neither complies with the letter of the statute, nor to what we believe to be the spirit of same. The appellant was represented by counsel and appeared to be able to give a recognizance bond on appeal and may have been amply able to give security for the transcript of the testimony to the stenographer and obviously the Court Reporter should not be forced under such circumstances to furnish him a transcript. If a proper affidavit had been filed, it was the duty of the trial judge to make the order provided for by the statute and this Court has exercised the authority compelling the Court Reporter to prepare a transcript of the testimony when a statutory affidavit has been filed in the court below. Ex parte Fread, 83 Tex.Crim. Rep.. Neither the trial court nor this Court would have the authority, in our opinion, to order this work done gratis if appellant was able to give security for the payment of the transcript of the testimony, and having failed to negative the existence of this fact, nothing is presented to us for review. It has been said: "In as much 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." Pedroza v. State, 263 S.W. 283. The transcript in this case wholly fails to show any order of record and being a court of record, we will presume that the trial judge failed to make any such order or if made orally, that same was rescinded, since he is presumed to have followed the law and not to have made any order based upon an affidavit wholly insufficient under the statute.
No bills of exception appear in the record and in the absence of a statement of facts nothing is presented for review and the judgment of the trial court 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. *Page 633
ON MOTION FOR REHEARING.