In a former opinion of this court the statement of facts in this case was striken out upon motion of the State, said motion containing two grounds, with one of which this court did not agree. The State has filed this motion for a rehearing asking that we either modify our holding in the original opinion declining to sustain the motion of the State to strike out the statement of facts on the ground that it was not properly authenticated, or else that we expressly overrule certain decisions which are cited and discussed by the able assistant Attorney General in his motion for rehearing and which it is contended are not in line with that portion of our original opinion.
Again inspecting the purported statement of facts in this case, we observe that it begins with the words;
"STATEMENT OF FACTS. "State of Texas vs No. 3231 Milton Thomas
In the District Court, Ninth Judicial District, San Jacinto County, Texas, Special July Term, 1918"
We also note that at the end of said purported statement appears the following:
"I, J.D. Harwood, official shorthand reporter for a special term of the District Court of San Jacinto County Texas, held in August, *Page 47 A.D. 1918, do hereby certify that the foregoing 37 pages contain a true and correct statement of all the evidence adduced on the trial of the above cause.
Witness my hand this 30th day of August, A.D., 1918.
J.D. HARWOOD,
Official Shorthand reporter for a special term of the district court of San Jacinto County, Texas, held in August, A.D., 1918.
"We, the undersigned attorneys who participated in the trial of the foregoing cause of the State of Texas v. Milton Thomas, do hereby agree that the foregoing 37 pages contain a true and correct statement of all evidence adduced on the trial of the said cause, and we agree that the same shall be filed with the records of this cause as the statement of facts herein.
Witness our hands this the 30th day of August, A.D., 1918.
_____________________ _____________________ _____________________
Attorneys for the State WM. McMURRAY, Attorney for the Defendant
"Approved this the 30th day of August, A.D., 1918. E.W. LOVE Special Judge Presiding at a special term of the District Court of San Jacinto County, Texas at a special term, August A.D., 1918"
We call attention to the case of Brown v. State, 56 Tex. Crim. 87 in which will be found a very similar authentication to that in the instant case, and this court there approves the rule laid down in the Lozano case, 81 S.W. Rep., 37, and after discussing them, expressly overrules those cases holding to the contrary, most of those discussed in the State's motion for rehearing being overruled in said opinion.
We have found many forms of authentication of statements of fact upheld by this court and the Supreme Court, the general conclusion being that the main object of our statutes and decisions on this subject is to secure to appellants and to the appellate courts a correct presentation of the facts and testimony in the trial courts, to attain which object a substantial compliance with the statutes is necessary; but to prevent the defeat of which object, the question as to what is a substantial compliance must be left to the sound judgment of the appellate courts. No hard and fast rule as to such authentication has been found, but we suggest that it is always safest to follow the plain path pointed out by our statute.
Believing our former opinion correct in principle and that the *Page 48 decisions contrary thereto were disposed of in the Brown Case, supra, the motion for rehearing is overruled.
Overruled.