Day v. State

181 S.W. 726, 78 Tex. Crim. 363, 1915 Tex. Crim. App. LEXIS 276

Opinions

HARPER, Judge.

Appellant was convicted of the offense of using abusive, vulgar and indecent language in a public place, in a manner calculated to disturb the inhabitants, and his punishment assessed at a fine of $1.

The statement of facts, on file bears only the signature of appellant’s counsel, and, of course, can not be considered. Affidavits have been filed pro and con as to whether or not appellant’s counsel have been guilty of such negligence as to deprive him of the right to have the case reversed because appellant has been deprived of a statement of facts. It appears that this ease was considered of so much importance appellant asked that a stenographer be appointed to report the testimony, and one was appointed by the court. A twenty-day order was entered in which a statement of facts could be filed. The stenographer’s certificate shows that appellant requested and paid her to prepare both a record in question and answer form and narrative, and this she did within eleven days from the day of adjournment of court. Both these records are before us, signed alone .by appellant’s counsel. As hereinbefore stated, there is a conflict in the affidavits on file, but inasmuch as it appears that appellant took the precaution of having a stenographer appointed in order to have the ease before us on a correct statement of facts, and appellant paid her to make out both a narrative statement and a statement in question and answer form, so that it would be easy to agree on a correct statement of the evidence, that same was made out in ample time, and that due diligence in the case is shown to have been exercised by appellant’s counsel, we are of the opinion he is entitled to have the ease reversed and remanded, because he has been deprived of a record in the cause.

The judgment is reversed and the cause remanded.

Reversed and remanded.