I most respectfully dissent from the opinion of my brethren, wherein they have made it incumbent on parties in criminal cases to use the diligence under the Act of the Twenty-Ninth Legislature which is required under the act of 1887, in regard to securing statement of facts after the adjournment of the term of court. Under the act of 1887 where a statement of facts was desired to be made up after the adjournment of the court, an order to that effect was necessary to be entered upon the minutes of the court. The Act of the Twenty-Eighth Legislature changed this and only requires that such order may be entered upon the docket of the court. Under those acts it was incumbent on the appellant in a criminal case to use all diligence possible to have his statement of facts made up within the time granted, and any want of diligence on his part in regard to this matter would be taken most strongly against him. In default of coming within time, if the showing was not sufficient that he used the utmost diligence to secure such statement of facts his case would be disposed of on appeal without considering the evidence. The Act of the Twenty-Ninth Legislature, p. 219, provides for a stenographic report of the evidence taken on the trial, upon the conditions and terms stated in the act. It is then "provided that in all criminal cases where the defendant is convicted of a felony and desires to appeal upon satisfactory showing to the court that he is unable to pay for the stenographer's transcript, that the judge of the court, if the said defendant is convicted, shall order the official stenographer to make the same for the defendant, in which event the same shall be paid for at the rate provided for in this act, and in the same manner as the transcript of the clerk of the court is paid for." This is a portion of section 5. Section 4 provides, that when the transcript is made at the request of either party, the stenographer shall file a duplicate copy among the papers, and it is made the duty of the court, if the transcript be found correct, to approve it; provided, however, before approving it, they shall be submitted to the interested parties for any objection they may urge, and if such objections are found material or well founded, they shall be allowed, and when approved and signed by the judge it shall be filed among the papers and become a record of the case. It is also provided in section 5, that in any case where such stenographer's statement is not made, this act shall not apply — that is, the Act of the Twenty-Ninth Legislature.
It occurs to me that the differences between the Act of the Twenty-Ninth Legislature and the old law are patent, and change the responsibility *Page 99 of the parties in regard to diligence in securing the statement of facts. By the express terms of the prior law, and even now where the Act of the Twenty-Ninth Legislature is not resorted to, it is incumbent upon appellant in a criminal case to use extraordinary diligence, and in fact it may be said that since the George case, 25 Texas Crim. App., 229, appellant must exhaust all diligence in order to have his statement of facts filed within the time allowed after the adjournment of the court, and if there are any laches on his part by reason of which the statement of facts was not filed within the time, he loses that part of his record on appeal. Under the Act of the Twenty-Ninth Legislature, the situation is changed. Neither appellant nor his counsel are required to make out a statement of facts; in fact, it relieves him from responsibility, and requires it at the hands of the stenographer, who is an official, under the control of the court. The stenographer is in no sense under the control of the attorneys in the case, and cannot be by the terms of that act. The responsibility has been taken from the appellant under the Act of the Twenty-Ninth Legislature, and placed upon the court, and the stenographer, or rather the stenographer, under the direction of the court. The only diligence required of appellant under that act is to simply make the showing required by the statute in order to obtain the order for the stenographer's transcript. When that has been done it becomes the duty of the court to see that the stenographer's record is filed. The only other connection therewith on the part of appellant or his counsel is, that they can make suggestions or criticisms of the stenographer's report when called upon by the court to do so, under the provisions of section 4 of said act; if in fact that section applies to a criminal case. It certainly is a harsh rule to hold appellant responsible for the statement of facts where the law takes away from him responsibility for making it, and places that duty upon another not under but beyond his control. It is not in accordance with my ideas of justice and right that appellant shall be held responsible for failing to do a thing that is required of another and over whom he has no control; in fact, who is excluded from his control. The responsibility of a party appealing for the record ought not to go further than his authority in making that record. If the stenographer had been by the terms of the law placed under his control and domination, there would have been some justice or equity in holding him responsible for the act of the stenographer, or his failure to comply with the terms of the law, but certainly not, when the law takes away from him all authority to control the stenographer. His responsibility ought not to go beyond the law. It is certainly a harsh rule to require him to have a statement of facts filed within twenty days, when the obligation rests upon another to make such statement, and the law omits from its provisions such twenty days. In my judgment the old law and this law, while in some sense not conflicting, yet they stand in such relation to each other that when the provisions of one is invoked the other does not apply. It leaves the opportunity to *Page 100 the appealing party to take his option or choice between the laws, and when that has been exercised his statement of facts is made up under the law which he invokes. The terms of the law, in my judgment, manifest that this view is correct. If a party seeks to make up a statement of facts in the narrative form under the old law, then all of the responsibility is upon the appellant to have his statement of facts filed in accordance with the terms of the old law; but where the statement of facts is made up under the Act of the Twenty-Ninth Legislature, then appellant is not required to do more than to ask and have an order entered that the stenographer's report of the evidence be certified. It would be an impossibility in all cases or nearly all, that the party appealing could make up a stenographic statement of facts, for the reason that he could not decipher the notes of the stenographer, and if they were turned over to him, they would be beyond his power and control to understand. In any event he had no jurisdiction over the stenographer and could not compel the making up of the statement of facts. This power is in the hands of the court, and must be done through his order and direction and at the hands of the stenographer. There is no other way provided under that law, and appellant's diligence ceases on having the proper order entered on the minutes of the court for a stenographer's statement of facts. The time in which that is made out does not enter into the Act of the Twenty-Ninth Legislature.
For these reasons I dissent from the opinion of my brethren, and I believe the statement of facts in this case should be considered by the court and the appeal disposed of in accordance with the evidence therein.