
    EDWARDS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1912.
    On Motion for Rehearing, March 27, 1912.)
    On Motion for Rehearing.
    Cbiminal Law (§ 1099) — Appeal — Statement of Facts—Filing—Time.
    Appellant is entitled to a reversal of a conviction if, notwithstanding the use of diligence by Mm, he was unable to obtain filing of -a statement of facts within the time fixed by Acts 32d Leg. c. 119, which authorizes the considera-tipn of the statement of facts filed at any time before the transcript is filed or entitled to be filed in the Court of Criminal Appeals.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    Appeal from District Court, Titus County; P. A. Turner, Judge.
    Tom Edwards was convicted of an offense, and he appeals.
    Reversed and remanded.
    Rolston & Ward, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other eases .see s.aine topic and section NUMBER in Dec. Dig. & Am.' Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This is a companion case to Atchley Parker v. State, 145 S. W. 347, this day decided. This record is in the same condition as that in the Parker Case, and for the reasons set out in the opinion in that case, this judgment will be reversed, and the cause remanded.

PRENDERGAST, J., absent.

On Motion for Rehearing.

DAVIDSON, P. J.

At a former day of this term the judgment herein was reversed and remanded on account of the failure of the district judge to approve the statement of facts in time to be considered by this court, holding that appellant, where it is shown he used diligence in seeking statement of facts, is entitled to a reversal if he does not obtain statement of facts. The state files a motion for rehearing, and cites us to several cases, among others Tankersly v. State, 51 Tex. Cr. R. 224, 101 S. W. 997.

We are of opinion that the cases cited by the state do not cover the situation shown by this record. Acts 32d Tex. Leg. p. 264, authorizes the consideration of a statement of facts filed at any time before tie transcript is filed, or entitled to be filed by law, in the appellate court. The record in this ease was filed October 2, 1911, in this court, and the statement of facts was not approved by the trial judge until January 9, 1912, over three months after the record was filed in this court. As approved by the judge, the statement of facts was filed in the trial court •on January 10, 1912, and in this court on January 15, 1912. Under the terms of the act of the Thirty-Second Legislature, this statement of facts was filed too late to be •considered here. Had the statement of facts been filed in the trial court before the transcript was filed here, we would have had the question presented by the state’s motion for rehearing; but under the terms of the act of the Thirty-Second Legislature the statement of facts came too late.

The state’s motion for rehearing is therefore overruled.  