¶1Opinion on Motion nob Rehearing.
¶2We were mistaken in the first opinion in this case in stating that there was no order for filing the statement of facts after the adjournment of the court. This mistake was immaterial, because the statement was not filed within ten days.
¶3In the brief, on the motion for rehearing, counsel for appellant insists that there was error in the charge of the court relating to manslaughter, and that as the court charged upon this grade of the offense, it is to be presumed that the evidence required the charge. If courts never charged abstract law, the presumption claimed would be reasonable.
¶4The judge’s notes were tendered to the district attorney by counsel for appellant, as a correct statement of facts, which were refused. It was then the plain duty of counsel for appellant to prepare from the notes or any other source a statement of facts, present the same to the district attorney, and, if he failed to agree, then to present it to the judge, etc.
¶5Again, no move toward obtaining a statement of facts was made until five days after the court adjourned, when counsel for appellant prepared, and sent by mail to the judge at Corsicana, a statement of facts. The statement being filed after the expiration of the ten days allowed, still it will be considered by this court if appellant has shown that he has used due diligence to have it approved and signed by the judge in proper time, and that his failure was the result of causes beyond his control. (Act of March 8, 1887.) This is the rule directly applicable to the state of case presented by this record. The statement was not filed within the ten days.
¶6Has appellant shown such diligence as is required by this act? Let us suppose that counsel for appellant had prepared a statement by the second day after adjournment, and had gone in person to Corsicana to the judge with it, and then insisted upon his approval and signature. It is very probable that these efforts would have,been successful; but if, after these endeavors, he had failed, he would then be in a better position to rely upon the act last cited. The plain, simple truth is that, instead of showing compliance with the statute upon this subject, the affidavits filed by appellant present a clear case of laches.
¶7The motion for rehearing is overruled.
¶8Motion overruled.