
    LYSTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 20, 1912.)
    Criminal Law (§ 1101) — Appeal and Error —Disposition—Failure to File Statement oe Facts Without Fault.
    Where a failure to file a statement of facts in a criminal cause within the time granted was due to no negligence of the appellant’s counsel, but rather to a failure of the state’s attorney to agree to one prepared, and his refusal to do anything in the way of getting such a statement, when requested to do so by the court, appellant was deprived of a statement without his fault, and a reversal is warranted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.]
    Appeal from Morris County Court; C. M. Henderson, Judge.
    T. C. Lyster was convicted of unlawfully carrying a pistol, and appeals.
    Reversed and remanded.
    Moore & Hart and Henderson & Bolin, all of Daingerfield, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of unlawfully carrying a pistol; his punishment being assessed at a fine of $100.

The county court that tried him adjourned on the 26th of August. There was a 20-day order entered, granting time to file statement of facts and bills of exception. The statement of facts was prepared by appellant’s counsel. The county attorney kept the statement of facts until the 5th of September, when he returned same to appellant’s attorneys with verbal disagreement. One of the attorneys for appellant then took the statement of facts to the county judge, and explained to him the disagreement, with a request that he make up a statement of facts. This the judge did not do. The statement of facts was carried to the county judge on the 8th of September. It is further stated that the county judge did not prepare a statement of facts, but, without approving the statement of facts prepared by appellant’s counsel, it was filed by the county judge with the county clerk; that appellant had nothing to do with its filing, and had no connection with it. It is further shown by the affidavit that appellant did what he could, or his attorneys for him did, to secure a statement of facts approved and filed within the time required by law. The county judge does not make an affidavit, but writes a letter, which is found with the record, and makes about this statement: That the statement in the affidavit by Hon. G. D. Hart, the party making the affidavit above referred to, in regard to statement of facts, is practically correct; that he could not, from memory, give the exact dates of the different actions in regard to the statement of facts, but he states Judge Hart brought him the statement of facts on the 8th of September, 1911, and at the same time informed him that the county attorney, who tried the ease, had refused to agree with him; that immediately afterwards he saw the county attorney, and inquired of him what the trouble was, and the county attorney informed him that he did not think the facts were correctly stated,' and would not agree, and also said that there was a letter that had been offered in evidence that he specially wanted in the statement. He told the county attorney that the attorneys had left a place for the letter to be copied in, and were willing that it be inserted; that he found out from the county attorney that the letter was in possession of a Mr. Jones, who lived in the country, and afterwards he got the letter himself, but too late for the statement of facts to be filed in time, as required by law. “I asked the county attorney to get this letter himself, and put it in, if that was all that was the matter with the statement. He never did; in fact, he refused to do anything in the way of getting a statement of facts, except to refuse to agree on the one as prepared by the defendant’s attorneys, and as result of this the statement of facts was not filed within the time required by law.” The county judge signs the letter officially.

The transcript shows the following: “Statement of facts delivered to O. M. Henderson [County Judge] September 8, 1911. Filed 1 — 30—1912. J. W. Cason, County Clerk Morris County, Texas.” The statement of facts is not signed by the judge. Under the showing made by the affidavit of Mr. Hart, one of the attorneys for appellant, and the statement made by the county judge in his letter, the appellant was not at fault. We are of opinion appellant has been deprived of a statement of facts without fault on his part. There are numerous decisions upholding this conclusion. Some of them are of very recent date. These commence with Trammell v. State, 1 Tex. App. 121, and end with Rawls v. State, 150 S. W. 431, decided at the present term of the court, and are unbroken to date.

Because appellant was deprived of a statement of facts on appeal, the judgment is reversed, and the cause is remanded.  