
    ANDREWS v. STATE.
    (No. 6671.)
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1922.)
    On Request to File a Motion for Rehearing.
    1. Clerks of court &wkey;»65 — Clerk not required to notify attorneys as to disposition of cases.
    The clerk of the appellate court is not required to notify attorneys as to the disposition of cases.
    2. Criminal law <&wkey;1077 — No duty of court without action of counsel to see statement of facts filed, and affidavit that defendant cannot pay for transcript is necessary.
    It is not the duty of a court appointing counsel to represent an accused, without action on the part of such counsel, to see that a statement of facts is filed on appeal, as there must be filed an affidavit that defendant is not able to pay for a transcript, under Vernon’s Ann. Code Cr.- Proc. 1916, arts. 845a, 846.
    Appeal from District Court, Liberty County; J. L. Manry, Judge.
    A. J. Andrews was convicted of murder, and appeals.
    Affirmed.
    
      W. T. Norman, of Liberty, for appellant.
    R. G. Storey, Asst. Atty. Gen., for tbe State.
   HAWKINS, J.

Appellant was convicted of murder, and bis punishment assessed at 50 years in tbe penitentiary.

Tbe record is before us without bills of exception or statement of facts. Tbe indictment charges an offense, and tbe proceedings appear to be regular. '

Tbe judgment of tbe trial court is affirmed.

On Reguest to Pile a Motion for Rehearing.

The opinion affirming tbe judgment was delivered February 15, 1922. Tbe time for filing motion for rehearing expired March 2d, and mandate issued on March 3d. On March 6th a motion for rehearing was presented to tbe clerk, with reguest that tbe court permit tbe same to be filed, although afer issuance of tbe mandate. It is claimed that tbe delay in presenting tbe motion was caused by delay in tbe mail carrying tbe notice of affirmance.

It might be well to call attention of attorneys interested in cases pending in this court that in order to accommodate them and conduct the business of tbe court in an orderly and prompt way rules were adopted many years ago, directing tbe clerk to notify attorneys interested when cases were set for submission. So far as is known to tbe court, there is no law reguiring even this to be done; and there is no requirement by law or rule of tbe court that the clerk notify attorneys as to tbe disposition of eases, but as a matter of convenience tbe clerk has been assuming this burden. We pass the guestion of whether we should consider tbe cause for delay sufficient to authorize a granting of tbe request to file tbe motion for rehearing and base our action upon tbe motion itself.

Tbe transcript was filed in this court on October 29, 1921. As mentioned in tbe original opinion no statement of facts or bills of exception appear in tbe record. Tbe case was not submitted pntil February 8, 1922. There is no mention in tbe record of any effort to secure a statement of facts, and, notwithstanding tbe case remained on tbe docket of this court for three months with the transcript in the condition referred to before final submission of the case, no complaint was made to this court that appellant bad been deprived of bis statement of facts. Tbe motion for rehearing states that counsel was, appointed to represent appellant, and seems to proceed upon tbe theory that because of that fact it was tbe duty of tbe court without action on tbe part of counsel to see that a statement of facts was filed. Part of article 846, Vernon’s O. O. P. 1916, reads as follows:

“Provided, that in all cases where tbe court is required to and does appoint an attorney to represent the defendant in a criminal action, that the official shorthand reporter shall be required to furnish the attorney for said defendant, if convicted, and where an appeal is prosecuted, with a transcript of his notes as provided in section 5 of this act (art. 844b), for which said service he shall be paid by the state of Texas, upon the certificate of the district judge, one-half of the rate provided for herein in civil cases.”

It will be observed that the portion of tbe article quoted referred back to section 5 of the original act which is carried forward as article 844b. Article 845a which is part of the same act, 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 (article 844b), 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 affidavits.”

The provisions of the act in question should be read together. If an accused who has been convicted is not able to pay for a transcript he shall make affidavit as provided for in article 845a. It does not appear from the record in the case before us that any affidavit as required was filed or indeed that any request, verbal or otherwise, was made to the trial judge for a statement of facts. The cases cited by counsel in his motion are Roberts v. State, 70 Tex. Cr. R. 588, 157 S. W. 1193; Jackson v. State, 70 Tex. Cr. R. 292, 156 S. W. 1183; Burden v. State, 70 Tex. Cr. R. 349, 156 S. W. 1196. Reference to these cases will show that in all of them affidavits were filed and in some mandamus was resorted to in order to secure a statement of facts.

No matters being set up in the motion which would aid the record in any way, or present any reason which can be considered by us as a failure on the part of the trial judge to perform any part of his duty relative to the statement of factSj and it presenting no reason why our original opinion should not stand, the request to file the motion for rehearing is denied. 
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