This conviction was for theft, the penalty assessed being three years in the penitentiary. The record does not contain a statement of facts. Accompanying this record is the affidavit of the attorney who defended appellant, explaining the absence of the testimony, and alleging sufficient diligence on his part seeking to have the evidence incorporated in the record. This affidavit is not controverted. It is stated by affiant that appellant was tried and convicted on the 16th day of April, 1904. Motion for new trial was overruled on the 26th day of the same month, and notice of appeal given. He requested the court to enter an order allowing him twenty days after the adjournment of the court in which to file statement of facts. This was refused by the court with the remark that he would not allow one moment of time after adjournment. This statement was made on April 26th, and the court adjourned on the 30th of the same month. After this refusal of the court to enter the twenty-day order, counsel at once prepared a statement of facts and submitted it to the district attorney, who after reading it refused to agree thereto; and further refused to make a statement of facts himself. The attorney's statement of facts was returned to him and given the district judge. Affiant says that after receiving the statement of facts from the district attorney, he went at once to Judge Gillaspie's home and tendered him the statement of facts and bill of exceptions, all of which occurred during the term. The judge informed him he would look over them and at once speak to Mr. Lea, the district attorney, concerning them. On the last day of the term and while the court was in session, counsel again asked the judge to approve said statement of facts, and was informed by the judge that he had left the statement of facts at his home on Texas Avenue, and would send for and look over them, and see Mr. Lea about it before court adjourned. Five days after the adjournment of the court the deputy district clerk went to the office of appellant's attorney and returned him the statement of facts unsigned by the district judge. The deputy informed counsel that the judge had instructed him to return the papers to counsel, and stated he had no order from the court to file any statement of facts in the case. It occurs to us that this is ample showing on the part of appellant through his counsel to obtain a statement of facts. The court not only refused to enter the twenty-day order provided by the legislative action, but failed and refused to sign a statement of facts or prepare one in order that appellant might have his case reviewed by this court. The district attorney also refused to sign. We fail to find any want of diligence on the part of counsel under the showing made, and because appellant was debarred from and refused a statement of the evidence on which his conviction was based, to the end that his appeal might be revised, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 492
ON REHEARING. June 24, 1904.