
    STEWART v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1912.)
    Criminal Law (§ 1101)—-Appeal—Disposi-tion — Failure to File Statement of Facts—Exercise of Due Diligence bt Appellant.
    Where a state’s attorney lost one statement of facts submitted by counsel of one convicted of a misdemeanor, refused to agree to another, and failed to provide one when requested to do so by the court, on advice of the opposing counsel that they were unable to agree, and the court did not make such a statement of its own accord, but certified that the failure to include it in the record was through no fault of the counsel for the appellant, all due diligence in endeavoring to have such a statement filed is shown to have been exercised, and the appellant is entitled to have the cause reversed and remanded.
    [Ed. Note.—For other cases, see Criminal 'Law, Cent. Dig. § 3204; Dec. Dig. § 1101.]
    Appeal from Wood County Court; R. M. Smith, Judge.
    Buck Stewart was convicted of a misdemeanor, and appeals.
    Reversed and remanded.
    Wynne, Wynne & Gilmore, of Wills Point, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of a misdemeanor. He gave notice of appeal, and brings this case to this court for review.

There is no statement of facts accompanying the record, but it is made to appear that appellant’s counsel prepared a statement of facts and presented it to state’s counsel, and that it was lost by state’s counsel. Appellant then prepared another statement of facts within the time allowed by law, and the county attorney refused to agree to it He then carried this statement of facts to the judge, telling him that he had been unable to agree with state’s counsel on a statement of facts, and requested the court to prepare and file a statement of facts in the case. The county judge certifies this to be true, and states he called on the county attorney to prepare a statement of facts, and submit it to him, but that the county attorney had never done so, and he, the county judge, had never prepared and filed a statement of facts in the ease, further certifying that appellant, “from no cause or negligence on his or his attorney’s part, has beén deprived of a statement of facts in this cause.” As it is thus conclusively shown that appellant used all diligence authorized by law to secure á statement of facts in the case, the cause is reversed and remanded, because he has been deprived of a statement of facts.

The judgment is reversed, and the cause is remanded.  