
    DAVIS v. STATE.
    (No. 10123.)
    (Court of Criminal Appeals of Texas.
    Oct. 6, 1926.
    Rehearing Denied Nov. 10, 1926.)
    1. Criminal law <&wkey;>f099(6) — Statement of facts, filed after 90 days limited therefor, is not considered on appeal (Code Cr. Proc. 1925, art. 760).
    Statement of facts, not filed within the 90 days after notice of appeal limited therefor by Code Or. Proc. 1925, art. 760, cannot be con-, sidered on appeal.
    2. Criminal law <&wkey;1097(4) — Statement of facts held necessary for review of admission of evidence.
    Merits of complaint of admission of evidence cannot be determined, in absence of statement of facts.
    3. Criminal law &wkey;>l 144(13) — Evidence is presumed sufficient where statement of facts was filed too late.
    Statement of facts having been filed too late, evidence is presumed to have been sufficient.
    On Motion for Rehearing.
    4. Indictment and Information <&wkey;476 — It is enough to prove commission of offense any time within period of limitations before return of indictment.
    It is not necessary to prove commission of offense on exact date laid in indictment, but it is enough to prove it was committed at any time prior to return of indictment and within the period of limitations.
    Appeal from District Court, Hunt County; J. M. Melson, Judge.
    Bob Davis was convicted of the illegal sale of liguor, and he appeals.
    Affirmed.
    Ramey & Davidson, of Sulphur Springs, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The conviction is for the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

The order overruling the motion for new trial was made November 9, 1925. The statement of facts was filed February 22, 1926, more than 100 days after notice of appeal was given. The statute, article 760, C. C. P. 1925, allows but 90 days. Because the statement of facts was not filed in the time allowed by law, this court is forbidden to consider it. See Bailey v. State, 104 Tex. Cr. R. 150, 282 S. W. 804; Johnson v. State, 104 Tex. Cr. R. 384, 283 S. W. 807; Jordan v. State, 104 Tex. Cr. R. 463, 284 S. W. 561; Kolbachinski v. State (Tex. Cr. App.) 284 S. W. 951.

In the single bill of exceptions found in the record, complaint is made of the receipt of certain evidence. The merits of the complaint cannot be. determined in the absence of the statement of facts.

We have read the purported statement of facts. If we were privileged to consider it, we deem it sufficient to support the verdict. However, it having been filed too late, the presumption that the evidence was sufficient must prevail.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant bases his motion on the proposition that the trial court erred in his charge in telling the jury that, if they found from the evidence that the accused sold the liguor in question at any time within one year prior to the presentment and filing of the indictment in this case, etc. We do not regard this as any error. The state is not required to prove that the offense was committed on the exact date laid in the indictment, but, under our practice and hold-' ings, may prove that same was committed at any time prior to the return of the indictment and within the period of limitation prescribed by statute. We have frequently held that a charge so instructing the jury was not an erroneous charge.

Being unable to agree with appellant’s contention, the motion for rehearing will be overruled. 
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