Opinion on Motion nob Rehearing.

We 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.

In 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.

The 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.

Again, 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.

Has 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.

The motion for rehearing is overruled.

Motion overruled.

This is a conviction for manslaughter, with the punishment fixed at three years confinement in the penitentiary.

Appellant was tried on the thirty-first day of October, 1887. *242The court adjourned on the eighteenth of November, 1887. Counsel for appellant presented to the district attorney, for his approval, a statement of facts, on the thirtieth day of November, 1887, twelve days after the adjournment of the court. Th@ statement of facts was received by the district clerk on the twelfth day of December, 1887, and was filed as of November 27, 1887. There was no order allowing the statement to be filed after adjournment. The law requires that the statement of facts be filed in term time, or under an order for the purpose, within ten days after adjournment of the court. But if not filed within the term, or within ten days (an order having been entered for that purpose) after adjournment, still, by virtue of article 1379a (act of March 8, 1887), when a statement of facts is filed after these times, and the party tendering or filing the same shall, to the satisfaction of this court, show that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time prescribed, to wit, in term time, or within ten days after adjournment, and that his failure to file the same in said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, this court shall permit said statement of facts to remain as part of the record, and consider the same, etc. (Approved March 8, 1887.)

Now, it can hardly be contended that appellant or his counsel has complied with the provisions of this article. Instead of showing due diligence, laches clearly appears. Failing to use proper diligénce to obtain the approval and signature of the judge to the statement of facts, and it having been filed after adjournment, without an order for that purpose, this court can not lawfully consider this statement of facts; and hence the errors assigned must be considered as if no statement of facts appeared in the record.

Appellant complains that, without fault on his part, he has been deprived of his bills of exceptions. If a party be dissatis-. fied with any ruling or action of the court upon the trial, he may except thereto at the time the same is made, and at his request he shall be given time to embody such exceptions in a written bill. Refusal by the court to grant such time is error, but such error must appear to have prejudiced some right of the party to constitute it reversible error; and for the party to have such error revised .by this court, he must at the the time reserve his bill to the action of the court in refusing him time to prepare *243his exceptions to the supposed erroneous ruling, action or opinion. If this bill is not allowed by the court, then he must appeal to the bystanders.

Quite a number of bills of exceptions appear in this record; none, however, were reserved at the time or within term time, all being filed after the court adjourned. We can not, under the circumstances, consider these bills, and the errors assigned must be considered without them.

This record is before us, therefore, without bills of exceptions ■or statement of facts, and we are to look alone to the sufficiency of the indictment and the charge of the court, testing the charge by the allegations of the indictment, and assuming that there was evidence calling for every theory of the case presented by the charge. The indictment is sufficient, and, without a statement of facts, the charge is not obnoxious to any radical error.

The judgment must be affirmed.

Affirmed.

[After the rendition of the foregoing opinion, the counsel for appellant filed an application for a rehearing, based upon grounds which are substantially disclosed in the opinion which follows.— .Reporter.]