
    LEWIS v. STATE.
    (No. 3580.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    Rehearing Denied June 25, 1915.)
    1. Criminal Law <&wkey;1099 — Appeal — Statement oe Facts — 1Time eor Filins.
    A purported statement of facts delivered by the court stenographer to the appellant’s attorney on October 5, 1914, and some weeks aft-erwards presented to the district attorney, who signed it as correct, but did not agree that it should be filed as of the proper time, which had expired September' 15, 1914, and after-wards presented to the court for approval, would not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Gent. Dig. §§ 2866-2880; Dec. Dig. <§=> 1099.]
    2. Criminal Daw &wkey;>1101— Appeal — Statement - oe Facts — Appeal in Forma Pau-peris.
    Under Act March 31, 1911 (Acts 82d Leg. c. 119) § 8, providing that on an affidavit in forma pauperis, seeking to have the court stenographer make a report of the trial without pay, the court shall make an order as in civil cases, such order is within the discretion of the court after hearing the affidavit and the evidence thereon, and where an affidavit was never presented to or acted upon by the court, and showed no reason why appellant had not made out a statement of facts without regard to the stenographer’s report within the 90 days allowed by law, a purported statement of facts delivered to defendant by the court stenographer would not be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 3204; Dee. Dig. <@=>1101.]
    3. Criminal Law <&wkey;1099 — Appeai>-Statement oe Facts.
    Under Act March 31, 1911, § 14, allowing to a defendant convicted of a capital offense, who cannot and has not employed an attorney to- represent her and for whom the court has appointed an attorney, a free statement of facts from the reporter, a purported statement of facts delivered by the court stenographer to defendant’s attorney after conviction for felony theft could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. <&wkey; 1099.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Mrs. Mildred Lewis, alias Mrs. Earl, was convicted of felony theft, and she appeals.
    Affirmed.
    Robert P. Coon, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of felony theft, and her punishment assessed at three years in the penitentiary.

The case was tried, and she was convicted on March 28, 1914. On the same day she filed a short formal motion for new trial. The court, for that term, adjourned on May 2d, which was the last day under the law at which that term could be held. On the morning of that day, about 10 o’clock, she filed an amended motion; there being 41 grounds set up. It contained 41 typewritten pages. Attached to it, among other things, were some affidavits attacking one of the jurors as disqualified. The district attorney at once contested the motion, among other things, showing that the juror attacked was then in California, and it was necessary that he should be had on the hearing of that motion, that the affidavits attacking Mm were made, one on April 21st, another on the 23d, and another on the 24th, but that he knew nothing about it, and they were not filed in this case, until said motion was filed as stated, and lie thereupon applied to the court to continue the motion till the next term of the court. The court so ordered. It seems that the next term of the court convened the following Monday. Her amended motion for new trial was still further contested by the district attorney, and the court heard it on June 17, 1914, and overruled the motion. Appellant then gave notice of appeal. No bills of exceptions were allowed and approved or filed at any time.

The record shows that no statement of facts was at any time filed in the lower court. In compliance with a writ of certiorari from this court, the clerk sends up what may have been intended for a statement of facts containing about 35 typewritten pages. This purported statement of facts in no way, on its face, indicates when it was agreed to by the parties, nor approved by the court. Doubtless the dates were purposely left off. The record shows that this purported statement was delivered by the court stenographer to the appellant’s attorney on October 5, 1914; that it was not thereafter presented to the district attorney for his action until some weeks afterwards. When it was, he immediately examined it and signed it as correct, but did not agree that it should be filed back within the time. Doubtless it was presented to the judge for his approval some time after the district attorney acted on it. The time for filing it under the law expired September 15, 1914, under any and all events.

On May 2, 1914, appellant made the pauper’s affidavit seeking thereby to have the court stenographer make a stenographic report of the trial without any pay. The record fails to disclose that this affidavit was ever presented to or acted upon by the court, or that any action whatever thereon was sought from the court. So far as the record discloses, the court was ignorant that any such affidavit was ever filed. Even if she had been entitled to the statement under her affidavit, if she had sought and procured the order of the court, it could have been complied with within a very few days. The statement as shown is only about 35 typewritten pages, and doubtless could have been prepared within a day. However, the statute prescribes (section 8,' Act of March 31, 1911, p. 267) that, when such affidavit is filed, the court shall make an order as in civil cases, which, as we understand, is within the discretion of the court, after hearing the affidavit and evidence thereon. But, as stated, the court, in this case, never acted on said motion, and his action thereon was not sought. Besides, said act of the Legislature expressly shows that the appellant need not rely upon the court stenographer at all to make out a statement of facts, but can do so without regard to the stenographer. No reason whatever is shown in her pauper’s affidavit or otherwise why she could not and why she did not thus make out a statement of facts within the 90 days allowed by law.

Again, where a defendant is convicted of a capital offense and cannot and has not employed an attorney to represent him, and the court appoints an attorney, the defendant is entitled to a free statement from the stenographer. See section 14 of said act. So that, in no event, can we consider said purported statement of facts.

In the absence of this, there is no question raised which we can review, and the judgment is therefore affirmed. 
      ®o>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     