
    ARBUCKLE v. STATE.
    (No. 9760.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied Dec. 9, 1925.)
    1. Criminal law &wkey;>l099(l) — Statute requiring court reporter to file statement of facts with clerk, on defendant’s filing affidavit in forma pauperis, held not in force when affidavit was filed (Vernon’s Ann. Code Cr. Proc. 1916, art. 845a; Acts 39th Leg. [1925] o. 20'2; Code Cr. Proc. 1925, art. 760, § 6).
    In view of fact that Vernon’s Ann. Code Cr. Proc. 1916, art. 845a, as amended, requiring court reporter to file statement of facts upon defendant’s filing affidavit in forma pauperis was repealed by Acts 39th Leg. (1925) c. 202, which took effect June 18, 1925, and that the act of Legislature, adopting Code Cr. Proc. 1925, which in article 760’, § 6, again enacted article into law, did not take effect until September 1, 1925, held that, where affidavit was filed on August 10, 1925, there was no statute in force requiring order directing court reporter to file statement of facts.
    On Motion for Rehearing.
    2. Criminal law &wkey;>l077 — Defendant, not having filed affidavit in> forma pauperis during trial term, held not to have brought himself within civil statute requiring stenographer to file statement of facts (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2098).
    Where defendant failed to file affidavit in forma pauperis during trial term, and did not describe judgment from which he was appealing, and did not secure order during trial term allowing appeal on such affidavit, held that he had not brought himself within Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2098, requiring court reporter to file statement of facts.
    Commissioners’ Decision.
    Appeal from Criminal District Court, D'al-Ias County; C. A. Pippen, Judge.
    Application by W. F. Arbuckle for writ of mandamus to compel John H. Bond, Court Reporter, tcf file statement of facts.
    Writ refused.
    See, also, 280 S. W. 825.
    G. W. Lindsey, of Dallas, for appellant.
    Shelby S. Cox, Crim. Dist. Atty., of Dallas, éam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

Appellant was convicted in the district court of Dallas county for the offense of murder, and his punishment assessed at confinement in the penitentiary for a term of 25 years.

The case is now before us on the appellant’s application for a writ of mandamus to compel the court reporter, John H. Bond, who reported the testimony and proceedings of this cause, to transcribe and file with the district clerk of Dallas county a narrative statement of the facts as reported by him. Said application shows that the transcript has been filed herein, and the same is not accompanied with a statement of the facts, for the reason that appellant is entirely destitute and without funds to pay for his appeal, and unable to pay the said court reporter or secure payment to him for transcribing and filing the statement of facts herein. The application further shows that on the 10th day of August, 1925, the defendant filed his affidavit in forma pauperis as required by article 845a, Vernon’s O. C. P., in the criminal district court of Dallas county, Tex., and requested the judge of said court to make an order directing said court reporter to transcribe and file with the clerk of said court the statement of facts as reported by him at the trial of said cause. Said application further shows that the judge of said court has refused to compel the said court reporter to prepare and file said statement of facts in narrative form as required by the above article of the statute. The article of the statute referred to, as amended by Acts 1919, c. Ill, § 1, is as follows:

“Provided that when any criminal case is appealed and the defendant is not able to pay for a transcript as provided for in section 5 of this act, or to give security therefor, he may make affidavit of such fact, and upon the making of such affidavit the court shall order the official shorthand reporter to make such transcript in duplicate, and deliver them as herein provided in civil cases, but the official shorthand reporter shall receive no pay for same; provided that should any such affidavit so made by such defendant be false he shall be prosecuted and punished as is now provided by law for making false affidavit.”

By act of the Thirty-Ninth Regular Session of the Legislature (chapter 202, p. 669, of the General Laws of the Thirty-Ninth Legislature)', the Stenographer’s Act was amended and article 845a above quoted was left out, and by express terms repealed by this law. This amended law took effect on June 18, 1925. The same session of the Legislature, in a bill entitled, “An act to adopt a Code of Criminal Procedure for the state,” enacted what is commonly known as the new Code of Criminal Procedure for this state, and in this Code the above article of the statute in a modified form is again enacted into law. Section 6, art. 760, C. C. P. The act of the Legislature adopting the C. C. P. by its express terms did not take effect until the 1st day of September, 1925. Under these conditions we are forced to hold that on the 10th day of August, 1925, at the time the defendant filed his affidavit in forma pauperis in the criminal district court of Dallas county, Tex., and at the time he requested the judge of said court to make an order directing the court reporter to transcribe and file with the clerk of said court the statement of facts,’ there was no statute in force in Texas requiring the trial judge to direct the court reporter to transcribe and file with the clerk of said court a statement of facts under the conditions shown in appellant’s application. It is therefore our opinion that the writ of mandamus should be refused.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that, if he does not show himself entitled, under the penal statutes, to an order directing the stenographer to make out and file a statement of the facts herein, still, under article 2098, Vernon’s Civil Statutes, he is so entitled. While we are of opinion that said article relates only to civil appeals, and has no bearing whatever on statements of fact, if we give to appellant the benefit of any doubt in this regard, we still believe that he wholly fails to bring himself within the rules laid down by the courts in construing said last-named article. He did not file his affidavit in forma pauperis during the trial term, which is held to be necessary in Dixon v. Bldg. & Loan Ass’n (Tex. Civ. App.) 28 S. W. 58; Emerson v. M., K. & T. Ry. Co., 37 Tex. Civ. App. 110, 82 S. W. 1060; Sanders v. Benson, 51 Tex. Civ. App. 590, 114 S. W. 436; Dixon v. Lynn (Tex. Civ. App.) 154 S. W. 656. He did not describe the judgment from which he was appealing. McShirley v. Hoard (Tex. Civ. App.) 46 S. W. 373; Bush v. Atwood (Tex. Civ. App.) 133 S. W. 924. He secured no order from the court below during the trial term allowing his appeal on such affidavit. Smith v. Oil Co. (Tex. Civ. App.) 85 S. W. 482. When the affidavit in the instant case was presented to the learned trial judge, after the expiration of the term in which conviction was had, the court refused appellant’s .request for an order directing the stenographer to make out such state-' ment of facts. We further observe that the record shows that appellant had an attorney of his own employment representing him, and no reason is assigned for failure or refusal on his part to prepare and presen.t to the court below a statement of the facts.

The motion for rehearing will be overruled. 
      <§rsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     