Appellant, by his motion for rehearing, presents some of the questions that were thoroughly considered and decided against him in the original opinion herein. We have carefully considered his motion for rehearing and there is nothing new presented that in any way changes our views, or makes it necessary to further discuss the questions decided.
He has also presented a supplemental motion for rehearing wherein he claims that the statement of facts shows that it is not a statement of the facts and that a written instrument signed by the appellant was introduced in evidence by the State which was not inserted in the statement of facts and that the same was lost in the county attorney's office and no effort made by the State to substitute the same or in any other way embody it in the record so as to make it a complete and true statement of the facts.
The law is that when an appellant appeals, the burden is on him to prepare a complete statement of facts, and it is not upon the State to do so. On this point the statement of facts shows that Frank Tirey, the Assistant County Attorney of McLennan County, produced a statement made by appellant to him and which was signed by appellant, and it was then introduced in evidence by the State on the trial of this cause. The statement of facts on this point says:
"Statement made before Frank Tirey by Mason Nobles offered in evidence (the statement was in writing and read as evidence to the jury. The statement has been lost or mislaid in the county attorney's office and can not be found. Hence the same is not copied herein.)"
The certificate of the court stenographer, to the statement of facts says: "The above and foregoing statement of facts constitute a true and correct copy of all of the material evidence and none other introduced upon the trial." The attorneys for the State and appellant agree as follows: "We, the undersigned attorneys for the plaintiff and defendant, hereby agree that the above and foregoing statement of facts is a true and correct statement of the material facts proved on the trial of said cause." This is signed by the county attorney for the State and appellant's attorney for the appellant, and is approved by the district judge.
All this is not only conclusive against this court, but the appellant herein agreed that the said statement of facts as prepared and agreed to "is a true and correct statement of the material facts proved on the trial." Instead of the statement of facts as agreed to, omitting said signed statement by appellant, being against him, it is clearly in his favor. If it was material at all, it must have been against him, for it is shown to have been produced and introduced by the State and not by him. This presents no error and could not be the basis of a reversal of this case.
The motion is overruled. Overruled. *Page 130