
    ARCHER v. STATE.
    (No. 3199.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.)
    1. Criminal Law (§ 627) — Appeal—Statement of Facts.
    Where, immediately on the overruling of accused’s motion for new trial, three days before adjournment accused called to the court’s attention that he was entitled to a statement of facts under the Stenographers’ Act of 1911 (Acts 32d Leg. c. 119), and within 12 days after adjournment filed an affidavit stating those facts and praying the immediate preparation and forwarding of a transcript of the record to the Court of Criminal Appeals, is not entitled to a reversal on the ground that he was deprived of a statement of facts; it not appearing that after adjournment he made any effort to procure it, and it being apparent that he prayed the prepdration of the transcript without it, though there was yet over two months in which it could be filed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1399-1408, 1412, 1434; Dec. Dig. § 627.)
    2. Homicide (§ 167) — Evidence — Admissibility.
    Where deceased, who was hilled with a knife, was found down the road the way accused went, evidence that accused while sitting on a gallery picking in the floor with his knife stated to the witness before starting down the road that he was going to get some meat with the knife, and that thereafter the witness heard some talking and two licks, is admissible; there being no direct evidence of the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 332-340; Dec. Dig. § 167.]
    Appeal from District Court, Wharton County ; Sam’l J. Styles, Judge.
    Paul Archer was convicted of murder, and he appeals.
    Affirmed.
    E. Hawes, Jr., of Wharton, and S. C. Cappel, Jr., of El Campo, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at ten years’ confinement in the state penitentiary.

Appellant having no counsel, the court appointed Messrs. E. Hawes and S. C. Cappel to represent him, and they did so on the trial of the case. The motion for new trial was overruled on May 27th, and the court adjourned on May 30th. There is no statement of facts in the record, and appellant, relying on Burden v. State, 156 S. W. 1196, asks us to reverse the case because he has been deprived of a statement of facts; but he hardly brings himself within the rule there announced. It is true that 12 days only after court adjourned appellant filed an affidavit with the clerk of the court, stating that immediately after the motion for new trial had been overruled he called the court’s attention to the fact that under the Stenographers’ Act of 1911 (Acts 32d Leg. c. 119) counsel for defendant was entitled to a transcript of the stenographer’s notes, in order to enable them to make up a statement of facts, and the court stated that he was familiar with the law in that respect. But it. nowhere appears in the record that he filed any motion or made any effort to get the court to require the stenographer to make out transcript, or that he ever called on the stenographer to-furnish him the notes thereafter, or that the stenographer refused to do so. But instead by the record it is apparent that within 12 days after court adjourned appellant’s counsel filed with the clerk the following request:

“Now comes the defendant, Paul Archer, and respectfully requests and instructs, the district clerk of Wharton county, Tex., to immediately prepare and forward to the Court of Criminal Appeals at Austin, Tex., a complete transcript of the record in its present condition, in the above styled and numbered case. Hereby expressly waiving any further time in which to-file bills of exceptions or statement of facts.”'

Thus it is seen that appellant not only did not call on the stenographer for a transcript, nor seek to have the court to compel him, to furnish his notes of the testimony, but instead thereof, before the stenographer had a reasonable time in which to make out a transcript, he files a request with the clerk of the court to at once forward the record to this court, waiving time in which to file a statement of facts, when he had 68 days in which it could be filed. Instead of appellant making an earnest effort to get a statement of facts as was done in the Burden Case, supra, it seems he was making a studious effort to keep one from being furnished him by demanding the record be forwarded to this court without a statement of facts within 12 days after court adjourned. No officer seems to have neglected his duty in the premises, but appellant in his zeal seeks to have the case forwarded to this court before the stenographer has a reasonable time in which to make out a transcript of his notes, and without even calling on the stenographer for the evidence he of his own accord waives time- and demands that the record be sent to this court without a statement of facts. Under such circumstances, he is not entitled to have his case reversed; but, in order to secure a reversal because.of a want of statement of facts, there must be shown an earnest, sincere effort on the part of appellant and his counsel, and the reason of his failure tó secure a statement of facts was on account of negligence of those other than himself.

There is but one bill of exceptions in the record. It complains that the court erred in permitting Sevan Norris to testify:

“Paul Archer was sitting on the gallery picking in the floor with his knife. I didn’t notice what sort of knife it was. Paul told me that he was going to get some meat with this knife. He got up from the gallery and sat up there on the bench. He sat on the bench a good' while, and then left and went down the road. When I saw him he was going towards the railroad. I never saw anybody down the road. After Paul had gone down the road, first I heard some talking, and then I heard two licks. Paul had not come back when we left.”

This was a case, as shown by the charge of the court, depending wholly on circumstantial evidence. The record discloses that deceased was found the next morning “down the road” the way Paul went, and that he was killed by being cut to death. This being a case depending on circumstantial evidence, there was no error in admitting the testimony, for in a case of that character it has been held that the mind seeks to explore every possible source from which any light, however feeble, may be derived. Noftsinger v. State, 7 Tex. App. 302; Black v. State, 1 Tex. App. 368; Cooper v. State, 19 Tex. 449.

There is no other bill of exceptions in the record, and, in the absence of a statement of facts, there is no other question presented in the motion for new trial we can review.

The judgment is affirmed.  