BROOKS, J.
Appellant was indicted in the district court of Robertson county for the murder of W. A. Gray, and on July 10, 1899, the judge of said court, of his own motion, changed the venue to Williamson county, where the cause was tried at the July term, and appellant was convicted of murder in the first degree, his punishment being assessed at confinement in the penitentiary for life.
The assistant attorney general has filed a motion to strike out the statement of facts, because same was not filed within the 10 days after the adjournment of the court, as provided by the order of the court. In reference to the diligence used in an effort to secure the statement of facts, we set out in full the affidavit of the learned judge, as follows: "I was the presiding judge of the district court of Williamson county, Texas, in August, 1899, when the case of State of Texas v. O. D. Cannon, charged with murder, was on trial, and which case is now pending in the court of criminal appeals. It is my recollection that a verdict in said case was returned on Tuesday, August 8th, or on August 9th. August 12th was the last day of the court,—the date on which the term expired by limitation of law. The motion for new trial was overruled, and an order entered allowing ten days in which to make up and file statement of facts. When motion for new trial was overruled, I requested counsel for defendant, Cannon, to make up and present statement of facts at earliest date possible, as the evidence was voluminous, and that I desired to have time to examine statement of facts when presented before expiration of ten days from adjournment of court. Counsel for defendant promised to prepare said statement as soon as possible, and stated that they would present it to me Thursday, August 17, 1899, they thought. I waited at Georgetown, after court adjourned, until August 17th, and, said statement not having been presented, I spoke to local counsel for defendant at Georgetown, Hon. W. F. Robertson, about it, asking him why they did not present said statement. He replied he did not know. I still remained at Georgetown, Texas, waiting for said statement to be presented, until the tenth day after adjournment of court, and in the meantime I several times urged upon local counsel for defendant to have said statement of facts presented. On the night of the tenth day after the day of adjournment of court I was awakened in my room by counsel for defendant, who presented me the statement of facts agreed to and signed by counsel for both sides. This was done at three minutes to twelve o'clock. I had no time or opportunity to examine said statement until next day, and on the next day, it being the 23d day of August, 1899, I spent nearly the entire day examining said statement of facts, and, finding the same incorrect in many particulars, I made such corrections in the same as were necessary to show the facts as they were proven, and immediately signed said statement, and had it filed by the clerk."
And in this connection we also quote, in substance, the affidavit of Hon. T. S. Henderson, of counsel for appellant, who states the facts necessary to a proper presentation of the question of diligence, as follows: "The trial began at Georgetown on the 2d day of August, 1899, and was concluded on the 8th of August; the verdict being rendered about 3 o'clock p. m. on that date. Anticipating a protracted trial and examination of many witnesses, we secured, at our own expense, the services of a competent stenographer and typist, Henderson Fowler, who resides at Cameron, and the office clerk of Henderson, Streetman & Freeman, to take the proceedings and testimony on said trial, and said proceedings and testimony were fully taken stenographically by said Fowler. The testimony was concluded on Monday, August 7th, at about 2 o'clock p. m. Upon the conclusion of the trial, the stenographer was directed to return at once to Cameron, and begin the work of transcribing upon the typewriter the proceedings of the trial, as rapidly as possible. It was further understood that the local attorney, Judge W. F. Robertson, should file a motion for new trial at once, and that same should be amended as soon as the bills of exception were prepared; that Attorney Henderson should return to Cameron, and prepare the bills of exception, and, as soon as same were ready, return to Georgetown, and assist in amending the motion for new trial; and that same should be presented, together with the bills of exception, and, if the motion was overruled, notice of appeal should be given. And in view of the fact that the record of the trial was voluminous, and the term of the court nearing an end, he was to procure an order from the court of ten days after the adjournment of the court within which to file the statement of facts. And Attorney Ford, if the motion for new trial was overruled, was to come to Cameron from his home at Bryan, and supervise the preparation of the statement of facts, with the assistance of Attorney Henderson and the stenographer. The arrangement to have the work of transcribing the stenographic notes at Cameron was agreed upon for the reason that both the stenographer and Attorney Henderson resided at Cameron, and had office, typewriting machines, and stationery and other facilities necessary for the prompt and expeditious transcription of the stenographic
record and preparation of the bills of exception and statement of facts, and said facilities could not be secured at Georgetown without great inconvenience and expense. And accordingly said stenographer returned to Cameron forthwith, arriving there on the 9th of August, at about 11 o'clock a. m., and proceeded at once to comply with his instructions as above set forth. The first work done by said stenographer was in transcribing the testimony, but on Thursday morning the stenographer was directed by affiant to transcribe the proceedings relating to the bills of exception, and on Thursday and Friday, up to the time the train left, he was engaged in transcribing the notes of the bills of exception, and in receiving and transcribing the final bills of exception from the dictation of affiant. The bills of exception were quite numerous and lengthy, as appears from the transcript filed, and were not finished until just before train time on Friday. Upon their completion affiant left at once on the train for Georgetown, for the purpose of presenting the motion for new trial and the bills of exception, and arrived at Georgetown that evening at about 7 o'clock, August 11th. Upon leaving Cameron for Georgetown, affiant instructed said stenographer to continue the transcription of the testimony, and get same ready as soon as possible, and told him Judge Spencer Ford, associate counsel, would come to Cameron as soon as he had the testimony ready, for the purpose of preparing the statement of facts. On the next morning, Saturday, August 12th, at about 8 o'clock a. m., affiant met the local attorney, W. F. Robertson, Esq., at his office, and with his assistance prepared an amended motion for new trial, and the same was filed in the district court at Georgetown at about 11 o'clock, and the bills of exception at about the same time delivered to the judge of said court, Hon. R. E. Brooks, for examination and approval. The motion for new trial was read, and, the judge stating he did not wish to hear any argument thereon, same was overruled, and notice of appeal given about 2 o'clock p. m. on said date. And thereupon said judge called to his assistance the attorneys representing the state, for the purpose of passing upon said bills of exception, and at about sundown on said date affiant went to the office of state's counsel, where said judge and attorneys were engaged considering said bills, for the purpose of inquiring concerning same, and found them still engaged in making additions, corrections, and alterations in said bills; and finally, at about 11 o'clock p. m. on said date, the bills were approved and filed, and, as it was the last day of said court, an application was made and order entered allowing ten days after the adjournment in which to file the statement of facts. Affiant immediately notified his associate attorney, Ford, at Bryan, that said motion had been overruled, and requested him to come to Cameron and supervise the preparation of the statement of facts, as had been agreed on, and stated the stenographer would probably be ready with the transcription of the testimony by Wednesday or Thursday following. And also that affiant, who was a member of the board of regents of the University of Texas, would be required to attend a meeting of said board at Austin during said week, and might not be able to assist in the preparation of said statement until late in the week; and it was further agreed between affiant and Attorney Robertson that, as soon as the statement of facts was prepared, affiant would either return to Georgetown in person and bring the same, or he would send it by express to the said Robertson, who would present it to attorneys for state, and afterwards to the judge, for approval; it being understood affiant would go in person if he could do so without great inconvenience. It was known to affiant and to said Attorney Robertson at the time that there was direct connection by express between Cameron and Georgetown; that such express was carried on by means of personal messengers, and the transmission of all parcels by said express was safe and expeditious, and was the usual medium for the carriage of valuable packages between said points. Affiant returned to...
