
    CHAVARIO v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.)
    1. Criminal Law (§ 1101) — Appeal—Statement of Pacts.
    Where the court, after accused had filed a pauper’s affidavit, ordered the stenographer to make out a statement of facts, the stenographer’s refusal to make out same on the ground that he was entitled to pay therefor did not excuse the want of a statement of facts in the record, where accused did not resort to mandamus or any other process to compel obedience to the order, and there was ample time before adjournment of the court and also within the time allowed for filing the statement to have resorted to such proceedings.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3204; Dec. Dig. § 1101.]
    2. Criminal Law (§ 1092) — Appeal—Bill of
    Exceptions.
    That the trial judge, after receiving the bill of exceptions within the time allowed for approving same, stated that he could not give his approval until he had received the statement of facts did not excuse the failure of accused to secure bills of exception in time, where he made no application for extension of the time; it being obligatory upon counsel to follow up bills of exception and see that they are approved and signed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §8)2803,2829, 2834-2861,2919; Dec. Dig. § 1092.]
    Appeal from District Court, Payette County; Prank S. Roberts, Judge.
    Domingo Chavario was convicted of manslaughter, and appeals.
    Affirmed.
    L. D. Brown, of La Grange, 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
    
   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at two years’ confinement in the penitentiary.

The case is before us without a statement of facts or bills of exception. The court adjourned on May 31st. The record was filed in this court on July 25th following. After conviction and before adjournment of court the defendant filed his pauper’s affidavit to the effect that he was unable to pay or give security for the costs for making out the stenographic statement of facts. This was filed May 15th, before the adjournment of court on May 31st. The court entered an order ordering the stenographer to make out a statement of facts, which he declined to do on the ground that he was entitled to receive his pay. So far as the record is concerned, there is no showing that appellant resorted to a writ of mandamus or any process to compel the stenographer to file the statement of facts. Under our decisions this showing is not sufficient. In order to have brought himself within the statute, as construed by the decisions, appellant should have resorted to some means or measure by which he could have compelled the stenographer to file a statement of facts; and, had the court refused to force him to do so, then appellant would be in condition to urge this matter before this court. The appellant could have secured a statement of facts by resorting to compulsory process at any time within 90 days after the adjournment of court; and, had the court refused to require the stenographer to make out and file same, this court would reverse because appellant had been deprived of his evidence on appeal.

Bills of exception were presented to the court within 30 days. Just how long before the expiration of the 30 days is not made definitely to appear. There is a letter attached to the affidavit of the attorney in the ease, signed by the district judge, written on the 26th day of June, in which he acknowledges receipt of bills of exception in a civil case and refers to the fact that he had received the bills of exception in appellant’s case some time before writing this letter but was not in position to sign or approve the bills of exception for want of the statement of facts, stating he would not approve the bills of exception until he received the statement of facts; that his mind was not sufficiently clear about what occurred so that he could intelligently pass upon and approve the proffered bills of exception. Under our decisions this is not a sufficient showing. If the defendant desired a longer time than the 30 days after the adjournment of court, he should have had an order from the judge extending the time beyond the 30 days, and further it seems to be the rule under the decisions that it is obligatory upon counsel to follow up bills of exception and see that they are approved and signed. 1-Ie was notified by the judge, by the letter previously mentioned, that he could not or would not approve the bills of exception until he had the statement of facts. At the time that letter was written, it was within five days of the limit of the 30 days, counting from the 31st of May, or rather the 1st ■day of June. There may not then have been, and was not under the circumstances set out in the affidavit and this record, time in which to secure the statement of facts for the judge. It then became the duty of appellant to have an extension of time or some action by which the statement of facts could have been gotten before the judge or at least to have presented the matter for action on the part of the judge in either approving the •bills or rejecting them. The statute seems to require that there shall be no want of diligence on the part of appellant or his counsel in securing bills of exception. In the absence of securing the necessary statement of facts and bills of exceptions, under the terms of the statute, the appellant is required to exercise all diligence necessary, otherwise laches will be imputed. Under the circumstances, in the light of the statute and our decisions, appellant has not brought himself within the rule so that these matters can be considered and a reversal granted on account of the failure to secure bills of exception and statement of facts.

Without these matters before us, there is no ground alleged that would require or authorize a reversal of this judgment. It is therefore affirmed.  