
    DAVIS v. STATE.
    (No. 10551.)
    (Court of Criminal Appeals of Texas.
    Oct. 13, 1926.
    Rehearing Denied Nov. 24, 1926.)
    1. Criminal law <&wkey;>1099(6) — Statement of facts, filed after time allowed by statute, cannot be considered.
    Where trial term adjourned June 11th, state-’ ment of facts, filed October 4th, was after time allowed by statute, and cannot be considered.
    2. Homicide <&wkey;308(I) — Instruction that every person with sound memory arid discretion, who with malice aforethought shall unlawfully kill, is guilty of murder, held not error.
    Instruction that “every person with sound memory and discretion, who” with malice aforethought shall unlawfully kill any person in this state, is guilty of murder, is not error, though 1925 codification uses word “whoever” instead of quoted phrase, and omits word “unlawfully.”
    3. Criminal law &wkey;H 122(3) — Appellate court cannot consider exceptions to charge, dependent on evidence not before it.
    Exceptions to charge, dependent on facts introduced in evidence not before appellate court, cannot be considered.
    Appeal from District Court, Rockwall County; Joel R. Bond, Judge.
    Gus Davis was convicted of murder, and he appeals.
    Affirmed.
    Claud Isbell, of Rockwall, for appellant.
    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 Rockwall county of murder; punishment, 99 years in the penitentiary.

The trial term of the court below adjourned on the 11th day of June, 1926. The statement of facts herein was not filed in the office of the district clerk until October 4. 1926. This was manifestly after the time allowed by statute for such filing. The statement of facts cannot be considered.

There was an exception taken to the definition of murder given in the court’s charge. The court gave the definition of murder as same appeared in our statute pri- or to the adoption of the codified statutes of 1925. We do not think the rearrangement of the language in the codification makes any difference in the sense, or changes the law in any- material part. Two other exceptions to the charge of the court cannot be considered because dependent upon facts introduced in evidence which are not before us. What we have just said applies to appellant’s bills of exception Nos. 2, 3, and 4. In the absence of the facts we are unable to appraise the weight of the matters set up in said bills.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

It is a matter of much regret to this court that we cannot consider the statement of facts. The showing made by appellant in connection with his motion is not sufficient to justify us in setting aside the plain mandate of our statutes in regard to the time in which a statement of facts must be filed to entitle it to consideration.

The motion will be overruled.  