
    SISSON v. STATE.
    (No. 7441.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.)
    1. Criminal law <&wkey;1077 — Defendant, entitled to preparation of statement of facts without payment therefor, must be diligent.
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 844b, 845a, 846, entitling a defendant convicted of a felony to preparation of statement of facts without payment therefor on affidavit of defendant’s inability to pay therefor, where the offense is not a capital offense, and without such affidavit in a capital case, a defendant must show some diligence in demanding that the statement of facts be prepared.
    2. Criminal law <&wkey; 1077— Defendant, entitled to statement of facts without paying therefor, must exercise diligence beyond filing affidavit of inability.
    Under Vernon’s Ann. Code Cr. Proc. 1916, arts. 844b, 845a, entitling a defendant, convicted of a felony not constituting a capital offense, to the preparation of statement of facts without payment therefor, on presenting an affidavit that he is unable to pay therefor, the defendant is in such cases required to exercise diligence in demanding the preparation of statement of facts in addition to the mere filing of the affidavit.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    Joss Sisson was convicted, of robbery, and he appeals.
    Affirmed.
    R.G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for robbery; punishment fixed at confinement in the penitentiary for a period of five years. Neither statement of facts nor bill of exceptions accompanies the record. The case was tried on the 9th of May. The motion for new trial was overruled on the 20 th of May, and 90 days thereafter were allowed for the preparation and filing of the statement of facts and bill of exceptions. On the 21st of May he filed an affidavit of inability to pay for a transcript of the statement of facts.

There is provided two contingencies in which one convicted of a felony may have prepared a statement of facts without payment therefor: (a) In a felony case less than capital, he may make and present the affi-. davit required by articles 844b, 845a, Vernon’s Code Crim. Proc.; (b) in a capital case it is made the duty of the court trying the ease to require the stenographer to make the statement of facts without the necessity of the affidavit mentioned. Article 846, Code of Crim. Proc.; Ex parte Fread, 83 Tex. Cr. R. 465, 204 S. W. 113. In either case, it would seem that there should be some diligence shown in demanding that the statement of facts he prepared.

In the instant case, appellant was not charged with a capital offense. He was charged with robbery, but there was no averment that deadly weapons or firearms were used in committing the offense. It was therefore not incumbent upon the court to appoint an attorney to represent him, though it seems that he was represented by an attorney appointed by the court. There is nothing to indicate that the affidavit permitted by article 845a was ever called to the attention of the trial judge or that within the 96 days allowed him to prepare his statement of facts any effort was made to obtain it. The law demanded of him some diligence to procure his statement of facts more than the mere filing of the affidavit. Jackson v. State, 70 Tex. Cr. R. 293, 156 S. W. 1183; Lewis v. State, 77 Tex. Cr. R. 200, 177 S. W. 972; Ex parte Fread, 83 Tex. Cr. R. 465, 204 S. W. 113; Andrews v. State (Tex. Cr. App.) 237

S. W. 1113; Monckton v. State (Tex. Cr. App.) 241 S. W. 1019; Jackson v. State (Tex. Cr. App.) 242 S. W. 731; Wood v. State, 67 Tex. Cr. R. 609, 150 S. W. 194.

The judgment is affirmed.  