
    JOHNSON v. STATE.
    (No. 10093.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.
    Rehearing Denied May 26, 1926.)
    1. Criminal law 4&wkey;l092(7).
    Statement of facts, filed more- than 90 days after notice of appeal, in violation of Code Cr. Proc. 1925, art. 760, cannot be considered on appeal.
    2. Criminal law <&wkey;H22(3).
    In absence of knowledge of facts before trial court, Court of Criminal Appeals' cannot appraise exceptions to court’s charge.
    On Motion for Rehearing.
    3. Statutes @=^117(7), 146 — Statutes prohibiting consideration of statement of facts, filed more than 90 days after notice of appeal, held not unconstitutional (Code Cr. Proc. 1925, art. 760; Const, art. 3, §§ 35,36).
    Code Cr. Proc. 1925, art. 760, prohibiting consideration on appeal of statement of facts, filed more than 90 days after notice of appeal, does not violate Const, art. 3, §§ 35, 36.
    Appeal from District Court, Taylor County ; W. R. Ely, Judge.
    D. W. Johnson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    T. A. Bledsoe, of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years and three months.

The trial took place on the 9th of October, 1925. Notice of appeal was given upon that date. Ninety days after adjournment were allowed within which to file a statement of facts and bills of exception. The document denominated statement of facts appears to have been filed in the district court on January 28, 1926. The court adjourned on the 31st of October, 1925. The 90 days after adjournment expired on December 31, 1925. The state’s attorney before this court has filed objections to the consideration of the statement of facts. The statute (article 760, C. C. P. Revision of 1925), prohibits the consideration of a statement of' facts filed more than 90 days after the notice of appeal. As the record is presented, we are not permitted to consider the statement of facts.

We are not able to appraise the exceptions to the court’s charge in the absence of a knowledge of the facts that were before the trial court. We find no complaint of the receipt of rejection of evidence.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Our refusal to consider the statement of facts is consistent with many announcements to the same effect, since the Revised Criminal Statutes of 1925 became effective. Appellant’s suggestion that the change in the statute is unconstitutional as violative of article 3, sections 35 and 36, of the state Constitution, is not upheld in an exhaustive opinion from the Supreme Court in American Indemnity Co. v. Austin, 112 Tex. 239, 246 S. W. 1019.

The motion for rehearing is overruled.' 
      
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