#### WILLIAMS v. STATE.

No. 18839.

Court of Criminal Appeals of Texas.

Feb. 24, 1937.

Frank Judkins, of Eastland, for appellant.

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

HAWKINS, Judge.

Conviction is for theft of property over the value of $50, punishment assessed at two years in the penitentiary.

No statement of facts is in the record.

It appears from the transcript that appellant made an affidavit complying with the provisions of subdivision 6 of art. 760, C.C.P., that he was not able to pay for a transcript of the testimony'in said cause, nor was he able to give security therefor. That portion of said article which is applicable here reads as follows: “When any felony'case is appealed and the defendant is not able to pay for a transcript of the testimony or give security therefor, he may make affidavit of such fact, and upon the making of such affidavit, the court shall order the official court reporter to make a narrative statement of facts and deliver it to such defendant” Subdivision 6. The court reporter controverted this affidavit and the court made an order stating that in his opinion appellant was not entitled to have the court reporter furnish him with a statement of facts. He denied the request of appellant, stating that it was the opinion of the court- that appellant was able to pay for a statement of facts.

In Ex parte Fread, 83 Tex.Cr.R. 465, 204 S.W. 113, 114, we discussed .a similar question under the statute as it existed at that time, which was article 845a, C.C.P., which in its language was very similar to the language of the present article 760. It was said in that opinion: “We are of opinion that under this section of the law (article 845a) there is imposed a mandatory duty upon the trial court to make the order requiring the court stenographer to preparé the transcript and a mandatory duty likewise upon the stenographer to do so. The statute does not leave it discretionary with the trial judge or within his discretion to determine whether an affidavit is true or not. It in terms names the remedy in the following language: ‘Provided, that should any such affidavit so made by such defendant be false he shall be prosecuted and punished as is now provided by law for making false affidavits.’ He makes the affidavit at his peril. The statute commands the district judge to direct and the stenographer to comply with the request. If the affidavit is untrue, it becomes the duty of the prosecuting officers to institute a prosecution or of the trial judge to direct the attention of the grand jury to the mar-ter, and the truth or falsity of the affidavit *229will be determined by a jury in a criminal proceeding.” The opinion in Fread’s Case has been consistently followed, the last opinion being Alexander v. State (Tex.Cr.App.) 94 S.W.(2d) 175. See, also, Banks v. State, 114 Tex.Cr.R. 219, 21 S.W.(2d) 517, and Belote v. State, 123 Tex.Cr.R. 468, 59 S.W. (2d) 161; Ballinger v. State, 110 Tex.Cr.R. 148, 8 S.W.(2d) 159; Knox v. State, 113 Tex.Cr.R. 373, 22 S.W.(2d) 932.

Since the opinions referred to, there has been no change in the law regarding the right of appellant desiring to appeal his case from having a statement of facts upon making an affidavit' in compliance with the statute. As we understand it, the matter does not now rest - in the discretion of the judge to refuse a statement of facts when the affidavit complies with the statute. If appellant made a false affidavit, he may be proceeded against as suggested in Ex parte Fread, supra. We feel constrained under our previous holdings to order a reversal of the judgment because appellant has been denied a statement of facts, and it is so ordered.