Opinion
No. 1989.
Decided November 6, 1912.
Unlawfully Cutting Timber — Statement of Facts.
Where, upon appeal from a conviction of a misdemeanor, it appeared from the record that appellant had used all diligence authorized by law to secure a statment of facts and that it was not his fault that he was deprived of the same, the cause will be remanded for new trial.
Appeal from the County Court of Wood. Tried below before the Hon. R.M. Smith.
Appeal from a conviction of unlawfully cutting timber; penalty, a fine of $10.
The opinion states the case.
Wynne, Wynne Gilmore, for appellant.
C.E. Lane, Assistant Attorney-General, for the State.
Appellant was prosecuted and convicted of a misdemeanor. He gave notice of appeal, and brings this case to this court for review.
There is no statement of facts accompanying the record, but it is made to appear that appellant's counsel prepared a statement of facts and presented it to State's counsel; that it was lost by State's counsel. Appellant then prepared another statement of facts within the time allowed by law, and the county attorney refused to agree to it. He then carried this statement of facts to the judge, telling him that he had been unable to agree with State's counsel on a statement of facts, and requested the court to prepare and file a statement of facts in the case. The county judge certifies this to be true, and states he called on the county attorney to prepare a statement of facts, and submit it to him, but that the county attorney had never clone so, and he, the county judge, had never prepared and filed a statement of facts in the case, further certifying that appellant "from no cause or negligence on his or his attorney's part, has been deprived of a statement of facts in this cause." As it is thus conclusively shown that appellant used all diligence authorized by law to secure a statement of facts in the case, the cause is reversed and remanded because he has been deprived of a statement of facts.
The judgment is reversed and the cause is remanded.
Reversed and remanded.