The offense is theft of hogs; the punishment, confinement in the penitentiary for two years.

Notice of appeal was given October 3, 1939. The statement of facts was filed in the trial court January 8, 1940, which was more than 90 days after notice of appeal was given. This was too late. See Subdivision 5 of Article 760, C. C. P. In the absence of a statement of facts we are unable to appraise appellant’s bills of exception.

The judgment is 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.