Shoffitt v. State

CHRISTIAN, Judge. The offense is assault with intent to murder; the punishment, confinement in the penitentiary for two years. Appellant was tried and convicted on the 5th day of April, 1934. His motion for new trial was overruled on the 9th day of April, 1934. On the date last mentioned appellant filed an affidavit stating that he was too poor to pay for a transcript of the testimony, was unable to give security therefor, had no money with, which to pay for a statement of facts, and was unable to give security therefor. On the same day the trial judge entered an order directing the court reporter to prepare and deliver to appellant a statement of facts in narrative form. The certificate of the clerk of the trial court is to the effect that no statement of facts has been filed. It appears from the uncontroverted affidavits of appellant and his attorney that the [532] court reporter failed to comply with the trial judge’s order, and that it is not due to appellant’s fault that he has been deprived of a statement of facts. Under the circumstances, we are constrained to order a reversal of the judgment. See Banks v. State, 21 S. W. (2d) 517; Ballinger v. State, 8 S. W. (2d) 159. The judgment is reversed and the cause remanded. Reversed and remanded. Hawkins, J., absent. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.