
    JONES v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    Criminal Law (§ 1101*) — Appeal—Record-Statement of Facts — Effect of Failure to File — Misconduct of Official Stenographer.-
    Where a defendant in a criminal prosecution complied with Acts 32d Leg. c. 119, § 8, that on filing pauper affidavit the court shall order the official stenographer to make transcript in duplicate, the neglect of the stenographer to comply with an order of the trial judge within the time extended to perfect the appeal will not preclude the defendant from having the court on appeal pass on his case, and it will upon showing of the stenographer’s misconduct make an order for the preparation of the statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.*]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    
      Allen Jones was convicted of burglary, and appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for tile State.
   HARPER, J.

Appellant was indicted, tried, and convicted of burglary, and his punishment assessed at four years’ confinement in the state penitentiary.

This case was tried on August 7, 1911, and the term of court adjourned on the 30th day of September, 1911. On the 5th day of October, 1911, appellant filed the following pauper’s oath: “Now comes Allen'Jones, defendant in the above entitled and numbered cause, and says upon oath that he is unable to pay for a transcript of testimony in the above cause, and is unable to give security therefor; wherefore, he prays that the court order the stenographer to prepare a transcript of testimony in the said cause the same as if said defendant has paid for same or given security for the payment thereof.”

On that day the court entered an order requiring the court stenographer to make out a statement of facts in question and answer form and file same with the clerk of the court. On October 31st, it being made to appear that the court stenographer had not then complied with the order of the court, the court granted an extension of time in which to file statement of facts, extending the time until November 30th. There is no statement of facts in the record, and it is not made to appear whether or not the court stenographer had complied with the order of the court and filed with the clerk a statement of facts in question and answer form. Section 8, of the official stenographers’ act (chapter 119) passed by the Thirty-Second Legislature, provides: “When any criminal case is appealed and the defendant is not able to pay for a transcript or give security therefor, he may make affidavit of such fact, and upon the making and filing such affidavit, the court shall order the stenographer to make such transcript in duplicate.”

A stenographer who takes an appointment under the provisions of that act is bound by all its provisions, and this court will not permit court stenographers to ignore the above-quoted provision of the law. Our laws wisely provide that the poverty of no man shall prevent the law from reaching out and spreading its protecting arms around him, giving to him all the rights and privileges that any other citizen may enjoy before the law. This defendant may be guilty, but he has the right under the law to have this court pass on his case on appeal, if he so desires, and he cannot be deprived of this privilege by the arbitrary act of a court stenographer or any other person. In the condition we find this record, we cannot tell whether or not the court stenographer complied with the order of the court, for, if the court stenographer complied with the order of the court and filed a statement of facts in question and answer form, it would then have been the duty of appellant and his counsel to have prepared from this a statement in narrative form and had same approved by the judge trying the case. If, as a matter of fact, the stenographer did not comply with the order of the district judge, if appellant will make proof of that fact before this court, and make an application that the stenographer be required to make out and file this statement, we will make and enter an order that will accomplish that purpose; and, if as a fact the failure to file a statement of facts within the time provided was occasioned by the willful refusal of the stenographer to comply with the order of the district judge, he can yet secure a statement of facts by making the proper showing and filing the proper application in this court and have his case passed on on its merits.

In the condition of the record as presented to us at present, there being no statement of facts, and the charge of the court submitting the offense charged in the indictment, we must affirm the judgment. But appellant will have 15 days in which to file a motion for rehearing, and, if the facts justify him in making application to this court to compel the official stenographer to comply with the order of the district judge, he can do so in connection with his motion.

The judgment is affirmed.  