
    FAIRLY v. STATE.
    No. 17507.
    Court of Criminal Appeals of Texas.
    April 17, 1935.
    V. M. Toomey, of Houston, and David E. O’Fiel and B. F. Sanders, both of Beaumont, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for robbery; punishment being five years in the penitentiary. No bills of exception are brought forward'.. The motion for new trial was overruled oni October 13, 1934, at which time notice of appeal was given. The statement of facts was filed January 12, 1935, which was 91 days after notice of appeal. Article 760, C. C. P., in subdivision 5, provides that: “A statement of facts in a felony case filed within ninety days from the date the notice of appeal is given shall be considered as having been filed within the time allowed by law for filing same.” For authorities holding that a statement of facts filed after ninety days may not be considered, see note 36, under article 760, Vernon’s Tex. C. C. P. vol. 3.

The judgment is affirmed.  