Ruston v. State

15 Tex. Ct. App. 377, 1884 Tex. Crim. App. LEXIS 14

Opinion

White, Presiding Judge.

This is a companion case to cause No. 1514, John Ruston v. The State, reversed and remanded by us on the twenty-sixth ultimo. In this case, as in that, it is made to appear that appellant used every means available to have his statement of facts certified and approved, so that it might become a part'of the record in this appeal. He made out his statement of facts and presented it for approval to the county judge within the time allowed. That officer, according to his statement found in the record, because, it seems, the county attorney had neither agreed to this statement or made out one himself, “ did not feel authorized, nor was I (he) willing to take the' responsibility of approving this statement.”

The duty of the judge, we think, is clearly pointed out by the statute. “ If the parties do not agree upon such statement of facts, or if the judge do not approve or sign it, the parties may submit their respective statements to the judge, who shall, from his own knowledge, with the aid of such statements, during the term make out and sign and file with the clerk a correct statement of the facts proven on the trial, and such statement shall constitute a part of the record.” (Rev. Stats., Art. 1378.) This rule obtains also where time is allowed to prepare the statement after adjournment of the term.

Opinion delivered February 2, 1884.

There being no statement on the part of the county attorney, the judge should have treated the defendant’s as a disagreed statement, and should have received it, and from it and his own knowledge made out a correct statement, in case he could not approve it as correct. Defendant has been deprived of a most important legal right, for which the judgment is reversed and the cause remanded.

Reversed and remanded.