On a former day of the term the judgment was reversed because appellant was refused a statement of facts, through no oversight or want of diligence on his part. The facts upon which the judgment was predicated are stated in the original opinion, to which reference is here made. The State has filed a motion for rehearing, appending the affidavits of the district judge, district attorney, clerk of the criminal district court, and one of his deputies. The district judge in his affidavit says: "That a pretended statement was presented containing what purported to be the testimony of a few, but by no means all of the witnesses who testified at the trial of said cause, and of one person who did not testify; and there was no pretense of giving the evidence in full or in substantial substance; the venue not being shown therein, and some of the most material witnesses were entirely left out, their evidence wholly eliminated. The official stenographer took and had a record of the evidence elicited on the trial of said cause, but so far as advised no effort was made to get a statement of facts from him, and no request made of him therefor. * * * The reason why twenty days was not allowed to file statements of facts was because after motion for new trial was overruled there was ample time to make and file one; and the statement made by defendant's counsel in affidavit that he would not be allowed one moment, etc., is wholly false and untrue." The district attorney says, "that no statement of facts was ever presented to me for approval, by said defendant Billie Nelson, or his attorney, and I never had but one conversation with said defendant's counsel, J. Vance Lewis, after his motion for new trial had been overruled, in which said J. Vance Lewis asked me to approve what he called a statement of facts, but which in reality was only a pretended statement of facts, in that it did not contain the testimony of all the witnesses; and that the statement presented to me was a garbled and untrue statement, and in nowise reflected the facts proven." This affidavit further states that he told appellant's counsel to get a stenographic statement of the facts and he would approve it, but that he never saw anything more of said counsel. The stenographer says that he was not applied to for a statement of facts. We do not regard the affidavits of the clerk and his deputy of sufficient importance to enter into a discussion of the motion. It will be noticed that these affidavits do not controvert the statement of appellant's counsel that he applied for and was refused the twenty days after the adjournment of the court; nor does it controvert the further statement of counsel, but substantiates the statement to the effect that the district attorney refused to agree to the statement of facts presented by appellant's counsel; and the district judge states that he refused to approve the same because it was not a complete *Page 493 statement of facts, nor a true one. Nor is appellant's counsel's affidavit controverted in regard to that portion of it wherein he states that the district judge received the statement of facts after the district attorney and appellant's counsel had disagreed; and they fully substantiate him that the court did not make up and file a statement of facts, and that he had possession of the statement of facts after the disagreement of the district attorney. When the district attorney disagreed to the statement of facts and it was handed to the district judge, he should have either made up a statement of facts or have allowed twenty days after the adjournment in which an agreement might be reached, to the end that defendant could have secured the testimony for his appeal. It is evident that the district attorney believed the statement of facts not a correct one, else he would not have been justified in refusing to approve it; and it is just such a state of case as this that throws the onus upon the district judge of certifying a statement of facts. We do not believe that the affidavits filed in support of the motion for rehearing materially change the matter as presented by the affidavit of appellant's counsel, for it shows no issue with him as to the fact that he presented and asked an agreement from the district attorney, which was declined; that he presented it to the district judge with the request that he approve his statement of facts; that on the last day of the term he requested the court again to do so; nor does it controvert, but sustains appellant's counsel in regard to the refusal of the twenty-day order in which to make up said statement of facts. We see no reason for changing our opinion heretofore rendered, and the motion for rehearing is accordingly overruled.
Overruled.