The offense is burglary; the punishment, two years in the penitentiary.
The state raises the question that the statement of facts is not filed within the time allowed by statute and are therefore not subject to be considered. The motion for new trial was overruled and notice of appeal given on July 4, 1931. The statement of facts appearing in this record shows to have béen filed October 8, 1931. This was ninety-six days after notice of appeal had been given. This was in excess of the maximum of ninety days after notice of appeal was given, and was too late. Article 760, Code of Criminal Procedure; Simmons v. State, 116 Texas Crim. Rep., 68, 28 S. W. (2d) 1084; Loyd v. State, 118 Texas Crim. Rep., 297, 38 S. W. (2d) 1127.
One bill of exception appears in the record. This bill complains of the following argument of the district attorney: “Gentlemen of the Jury, go out into the jury room and assess such a penalty against this defendant that will teach him he can not go about in the night committing burglaries; teach him and others that these wholesale burglaries have got to stop.”
No ground of objection was stated to said argument, just the fact that defendant’s counsel objected and requested that the court instruct the jury not to consider such remarks of the state’s counsel, • which was refused by the court. No reversible error is shown by reason of said argument.
Finding no error in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the' Judges of the Court of Criminal Appeals and approved by the Court.