
    KOLBACHINSKI v. STATE.
    (No. 10190.)
    (Court of Criminal Appeals of Texas.
    May 26, 1926.
    Rehearing Denied June 23, 1926.)
    1. Criminal law <&wkey;1099(7).
    Statement of facts, filed over 90 days, allowed by Code Cr. Proc. 1925, art. 760, after motion for new trial was overruled and notice of appeal given, cannot be considered.
    2. Criminal law &wkey;>!099(7).
    Refusal of charge, applicability of which depends on testimony, cannot be considered, where statement of facts was filed too late.
    —.For otiier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Trinity County; Carl T. Harper, Judge. .
    Toney Kolbachinsfci was convicted of manslaughter, and appeals.
    Affirmed.
    M. D. Bennett, of Normangee, Haynes Shannon, of Navasota, O. H. Crow, of, Grove-ton, and Wiley Poston, of Lufkin, for appel-1 ■ lant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in district court of Trinity county of manslaughter; punishment, two years in the penitentiary.

The state objects to the consideration of the statement of facts in this case because filed more than 90 days after the motion for new trial was overruled and notice of appeal was given. The motion for new trial was overruled October, 13, 1925. The statement of facts was filed January 14,' 1926. This was 93 days after the notice of ■appeal, and more than the time fixed by the Revised Statutes of 1925 (Code Cr. Proc. 1925, art. 760). We are thus deprived of the right to consider the statement of facts.

The record contains but one bill of exceptions. Same was taken to the refusal of a special charge, the applicability of which would necessarily depend upon the testimony in the case. Being deprived of the right to look to the testimony, we are unable to determine whether the refusal of the special charge referred to was error.

The Indictment being regular, and the charge of the court appearing to be satisfactory to appellant and to present the law applicable to the offense, and nothing being before us to support any contention that appellant has not had a fair trial, the judgment will be affirmed.

On Motion for Rehearing.

The members of this court have expressed their regret more than once at the change in the 1925 Code of Criminal Procedure of the time within which statements of facts must be filed in order to entitle them to consideration by this court. We do not make the law. We only interpret it in doubtful cases and declare it in others. Said statute plainly fixes the time within which the statement of facts must be filed in a criminal ease. Said! period is 90 days from the date of the giving of notice of appeal. The statement of facts in thisi case, not being filed within the time fixed by statute, cannot be considered.

The motion for rehearing will be overruled.  