
    EVANS v. STATE.
    (No. 5290.)
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1919.)
    1. Criminal Daw <§=1099(6)- — Appeal—Fil-ins Statement of Facts — Time.
    In misdemeanor cases, the statement of facts must be prepared in 90 days, and if that is not done it must be filed before the transcript in the Court of Criminal Appeals, and cannot be sent up as an original paper.
    2. Criminal Daw <§=1106(3) —■ Failure to Obtain Statement oe Facts — Reversal.
    Where, through no want of diligence, appellant, on appeal in a misdemeanor case, is unable to obtain in due time a statement of facts from the judge, the judgment of conviction will be reversed.
    Appeal from Kaufman County Court; J. P. Coon, Judge.
    Tom Evans was convicted of theft of property under value of $50, and he appeals.
    Reversed.
    Huffmaster & Huffmaster, of Kaufman, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

This conviction was for theft of property under the value of $50:

The statement of facts is so presented that it cannot be considered, and appellant asks that the case be reversed for want of securing a statement of facts. The affidavit in connection with the question of diligence in securing the facts may be briefly stated as follows: The court adjourned about the 2d or 3d of April. An order was entered allowing 20 days in which to prepare and file statement of facts. Within 5 or 6 days after adjournment, the statement of facts was drawn up by the defendant’s attorney and presented to the county attorney, who refused to agree. It was then carried to the county judg'e, who promised that the statement of facts would be prepared in time. Efforts were made by counsel to have the evidence properly filed, but without suc■cess. Promises of the county judge, it seems, continued for about 90 days, after which time he refused to file same; at least, such is the intimation in the affidavit. There was no statement of facts filed prior to the time the record was made up and filed in this court, which occurred on the 10th day of December, 1918. The affidavit made by counsel, showing his failure to get a statement of facts, and that it was through no negligence on his part was filed in this court on the 22d day of January, 1919. A statement of facts was then prepared and filed in this court, but not in the county court, on the 3d day of February, 1919. Under the law this statement of facts should have been filed before the transcript was made up and embodied in the transcript as part of it. This evidence could not be considered because not part of the transcript, and it is sent up long after the transcript was filed in this court. It is not even filed in the trial court. This is an original statement of facts. As we understand the statute, in any case a statement of facts must be prepared within 90 days, and, if that is not done, same must be filed before the transcript is filed in this court, and in misdemeanor cases the evidence must be incorporated in the transcript, and cannot be sent up, as in felony cases, as an independent ■paper.

We desire again to call attention of the trial courts and counsel that matters occurring in preparing papers and transcripts that come to this court for its inspection and review should be governed by the procedure and practice as by statute prescribed. Slight attention to the preparation of the necessary papers of a transcript would avoid such troubles, and we express the hope that parties concerned, both court, and attorneys, will see promptly that all necessary papers relied upon in this court are prepared in ac•cordance with the statute and filed within reasonable time. It ought not to be necessary for this court to be called on to pass •on questions of this character.

Viewing this matter from the standpoint of the showing, we are of opinion that appellant should have the judgment reversed for want of obtaining a statement of facts, and it is, accordingly, so ordered. 
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     