McNabb v. State, 20663.

• Decision Date: 18 October 1939
• Docket Number: No. 20663.,20663.
• Citation: McNabb v. State, 132 S.W.2d 273, 137 Tex.Cr.R. 463 (Tex. Crim. App. 1939)
• Parties: McNABB v. STATE.
• Court: Texas Court of Criminal Appeals

Page 273

132 S.W.2d 273

McNABB v. STATE.

No. 20663.

Court of Criminal Appeals of Texas.

October 18, 1939.

Commissioner's Decision.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

J. D. McNabb was convicted of rape, and he appeals.

Judgment reversed and cause remanded.

S. B. Ehrenwerth, of Houston, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Conviction is for rape; punishment is assessed at confinement in the state penitentiary for a term of five years.

The record is before us without a statement of facts. The only question that need be considered by us is whether or not the appellant was deprived of a statement of facts without fault on his part. The state's attorney has admitted that the cause requires reversal and the trial judge stated that he would have granted a new trial but that by the time the full facts were disclosed to him he was without jurisdiction to do so, inasmuch as the motion for a new trial had been overruled and notice of appeal given and entered.

It appears that the court reporter who took down the shorthand notes became ill with a throat infection shortly after the trial had been completed. Counsel for appellant made frequent inquiries of the trial judge concerning said statement of facts and was informed that the reporter was dictating the same to another stenographer, capable of transcribing them. This work was never completed, however, and the reporter became so ill that he could not even talk. We quote from the court's certificate regarding this matter, as follows: "The time provided by law having elapsed, and the judgment having...