
    NEGRETE v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    Ceiminal Daw (§ 1099) — Aupeal—Statement of Facts — Failure to Furnish.
    Where an application by accused under Acts 32d Leg. c. 119, that the stenographer be required to furnish a statement of facts without pay on the ground that he is too poor to pay for it was not presented to or acted on by the court, he did not tender the fees for a statement of facts, and no motion for an extension of time within which to file such statement was made until 50 days after the adjournment of the term, his conviction will not be reversed for failure to furnish him such statement.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Nolan County; James L. Shepherd, Judge.
    Rasalillo Negrete was convicted of assault to murder, and he appeals.
    Affirmed.
    W. E. Ponder, of Sweetwater, for appellant. C.' E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of assault to murder; his punishment being assessed at three years’ confinement in the penitentiary.

The day the trial court adjourned appellant filed an affidavit to the effect that he was too poor to pay for a stenographic report of the statement of facts and bills of exception, and asked that the stenographer furnish him with said matters under terms and provisions of the act of the Legislature of 1911, c. 119. There is nothing to indicate this affidavit was ever presented to or acted on by the court. The record does not contain a judgment or finding of the court on the motion and affidavit. The stenographer did not transcribe the evidence from his notes. It seems, by the provisions of the act of 1911, the parties to the suit may call for a statement of facts from the stenographer by paying for it, or, if he is unable to do so, he can file pauper affidavit and have the court to enter proper order requiring the stenographer to file a statement of facts, if upon hearing the court deems it proper, or the parties may make up a statement of facts without regard to the stenographic notes.

As before stated, the attention of the court was not called to the pauper’s affidavit, and appellant nor his counsel made up a statement of facts independent of the stenographic notes. The judge and stenographer file affidavits. The affidavit of the district judge is to the effect that the application for extension of time was not made to him until about 50 days after court adjourned, and he declined to extend, and assigns as a reason that it was not proper to do so after the 30 days had passed. The stenographer makes affidavit that, after adjournment of the court, the first 30 days was consumed in making up records of cases which were tried prior to the case of appellant; that there was no extension 'of time asked for until about the fiftieth day after the adjournment of the term, and such extension was refused; that he was ready and able to make up such statement of facts had there been an extension granted; and that it is not a fact that he -either neglected or refused to make up such statement of facts.

Under the showing made by these affidavits, we are of opinion appellant is not in position to ask, as he does, that the case be reversed because he did not get a statement of facts. He was not in condition, as we understand the act of the Legislature, to get the statement of facts made up by filing a pauper’s affidavit, because no order was entered by the court allowing that procedure. He did not tender fees to the stenographer for a statement of facts, nor was any attempt made on the part of appellant or his counsel to make up a statement of facts independent of the stenographic report. Therefore, as the record presents itself, we are of opinion that appellant is not in position to ask that the judgment be reversed because he did not obtain a statement of facts.

Without the statement of facts there is nothing in the record that can be intelligently revised. The motion for new trial relates to matters altogether that cannot be considered in the absence of statement of facts.

The judgment is affirmed.  