
    GREEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 29, 1913.
    Rehearing Denied Feb. 19, 1913.)
    Criminal Daw (§ 1099) — Appeal—Deprivation of Right to Statement of Facts.
    Defendant’s motion for a new trial was overruled, and, on counsel’s affidavit of his inability to pay for a statement of facts, the court refused an order to make up a statement, on the ground that more than 30 days had elapsed from the overruling of the motion for a new trial, and offered to approve any statement agreed upon by defendant and the district attorney, and, though defendant’s attorney left a statement of facts with the district attorney, he did not report their failure to agree thereon, in which case the court would have made the statement and included it in the record. Held, that the conviction would not be reversed, on the ground that defendant had been deprived of a statement of facts; it being only in those cases where, through the fault or negligence of the state’s attorney or the wrongful acts of the trial judge, such statement is lacking, that a reversal is authorized.
    [Ed. Note. — For other cases, see Criminal Law, ^ Cent. Dig. §§ 2866-2880; Dec. Dig. §1099.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Charlie Green was convicted of robbery, and be appeals.
    Affirmed.
    J. Yance Lewis, of Houston, 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
    
   HARPER, J.

On June 4, 1912, this case was tried in the criminal district court of Harris county, Tex., and appellant convicted of robbery, and his punishment assessed at six years’ confinement in the penitentiary. There is no statement of facts with the record, and appellant requests us to reverse the case because he has been deprived of a statement of facts.

It is only in those cases where, through the fault or negligence of the state’s counsel, or the omission or wrongful act of the judge, trying the case, the defendant has been deprived of a statement of facts, we would be authorized to reverse on this ground. While there are some affidavits which would indicate that appellant had done all the law required of him to entitle him to a statement of facts, yet the judge of the criminal district court has filed in this court the following affidavit: “On this day personally appeared before me, Cornelius W. Robinson, judge of the criminal district court of Harris county, Texas, who, after being by me duly sworn, upon oath says: That a motion for a new trial in this case was overruled on the ,14th day of June, 1912; that thereafter, on the 20th day of July, 1912, J. Yance Lewis, attorney for Charlie Green, presented to me an affidavit stating that the defendant was too poor to pay for a statement of facts to be prepared by the stenographer, and upon said date I refused to order the stenographer to make up a statement of facts, more than 30 days1 having elapsed from the overruling of the motion for a new trial, and this court holding session more than eight weeks. I stated to J. Vance Lewis,, however, that if he would prepare a statement of facts and present it to the district attorney, and they would agree on a statement of facts, that I would approve the same and have it sent up with the record:, and the higher court could use their judgment as to whether it should be considered. The said J. Vance Lewis at no time reported to me that he was unable to agree with the district attorney on a statement of facts, and in fact I heard no more with reference thereto until on or about the 13th or 14th day of December, 1912, when Mr. Clarence Kendall, assistant district attorney for Harris county, brought to me a statement of facts that he said Lewis had left in his office some time the latter part of July, 1912. Had the said J. Vance Lewis reported to me that he had failed to agree with the district attorney upon a statement of facts in this case, I should have made up a statement of facts, and filed the same, and had it sent up with the record.” The assistant district attorney has also filed an affidavit denying that he ever refused to agree with appellant’s counsel on a statement of facts. Under the circumstances, we do not feel we would be authorized to reverse the case on this ground.

The judgment is affirmed.  