Appellant was convicted in the District Court of Dallas County for the offense of murder and his punishment assessed at confinement in the penitentiary for a term of twenty-five years.
The case is now before us on the appellant's application for a writ of mandamus to compel the court reporter, John H. Bond, who reported the testimony and proceedings of this cause, to transcribe and file with the district clerk of Dallas county a narrative statement of the facts as reported by him. Said application shows that the transcript has been filed herein and the same is not accompanied with a statement of the facts for the reason that appellant is entirely destitute and without funds to pay for his appeal and unable to pay the said court reporter or secure payment to him for transcribing and filing the statement of facts herein. The application further shows *Page 131 that on the 10th day of August, 1925, the defendant filed his affidavit in forma pauperis as required by Art. 845-A Vernon's C. C. P. in the Criminal District Court of Dallas County, Texas, and requested the judge of said court to make an order directing said court reporter to transcribe and file with the clerk of said court the statement of facts as reported by him at the trial of said cause. Said application further shows that the judge of said court has refused to compel the said court reporter to prepare and file said statement of facts in narrative form as required by the above article of the statute. The article of the statute referred to is as follows:
"Provided that when any criminal case is appealed and the defendant is not able to pay for a transcript as provided for in Sec. 5 of this Act, or to give security therefor, he may make affidavit of such fact and upon the making of such affidavit, the court shall order the official shorthand reporter to make such transcript in duplicate and deliver them as herein provided in civil cases, but the official shorthand reporter shall receive no pay for same; provided that should any such affidavit so made by any defendant be false, he shall be prosecuted and punished as now provided by law for making false affidavit."
By act of the 39th regular session of the Legislature, Chapter 202, page 669, of the general laws of the 39th Legislature, the stenographer's act was amended and Art. 845A above quoted was left out and by express terms repealed by this law. This amended law took effect on June 18, 1925. The same session of the Legislature in a bill entitled an act to adopt a C. C. P. for the state, enacted what is commonly known as the new C. C. P. for this state and in this code the above article of the statute in a modified form is again enacted into law. Sec. 6, Art. 760, C. C. P. The act of the Legislature adopting the C. C. P. by its express terms did not take effect until the first day of September, 1925. Under these conditions, we are forced to hold that on the 10th day of August, 1925, at the time the defendant filed his affidavit in forma pauperis in the Criminal District Court of Dallas County, Texas, and at the time he requested the judge of said court to make an order directing the court reporter to transcribe and file with the clerk of said court the statement of facts, there was no statute in force in Texas requiring the trial judge to direct the court reporter to transcribe and file with the clerk of said court a *Page 132 statement of facts under the conditions shown in appellant's application, It is therefore our opinion that the writ of mandamus should be refused.
Mandamus refused.
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.
ON MOTION FOR REHEARING.