Appellant was convicted of a misdemeanor theft, having been tried in the County Court.
There was an order entered by the court allowing thirty days after the adjournment of the term in which to prepare a statement of facts and bills of exception. Before the expiration of the thirty days appellant applied for and obtained an extension of time. The statement of facts and bills of exception were filed before the expiration of the extended time. The Assistant Attorney-General insists that the statement of facts in this condition of the record can not be considered, and we are of opinion that his contention is correct. The Act of 1907 prescribes that twenty days shall be allowed after the adjournment of the term of the County Court in which to prepare these papers, and that appeals from County Courts are governed by that law and not by the Act of 1909. The Act of 1909 only relates to courts where official stenographers are employed and not to County Courts, where they are not authorized by law to take down the testimony. In those courts where official stenographers are used, it was evidently the purpose of the law to extend sufficient time in which the statement of facts and bills of exception may be filed. Under that law the parties to the case can not prepare the statement of facts, or at least the law proceeds upon the theory that as the notes were taken stenographically, that parties to the case are unprepared to make a statement of facts, and the stenographer is required to reduce the stenographic reports to narrative form or put it in such language at least that the parties may be able to understand the report of the evidence and bills of exception. In other words, the law relieves the parties to the case from making out the statement of facts after they have been transcribed by the stenographer, and the extension of time beyond the thirty days was allowed because of the inability of the parties to transcribe the stenographic notes, but this rule does not apply to County Courts. The responsibility of making out the statement of facts is upon the parties to the case, and not on the stenographer. Therefore the statement of facts will not be considered.
There were several special charges requested as well as exceptions taken to the court's charge. The requested instructions were refused. We are of opinion the matters set out in bills of exception as being erroneous can not be reviewed in the absence of statement of facts, as they all pertain to matters sought to be brought before the jury by the special charges.
In the condition of the record we are of opinion, therefore, no such error has been brought to the attention of the court that can be reviewed, and the judgment will be affirmed, and it is accordingly so ordered.
Affirmed. *Page 38
ON REHEARING. April 26, 1911.