Burglary is the offense; penalty assessed at confinement in the penitentiary for life.
The indictment charges in substance that on the 26th of May, 1932, the appellant committed the offense of burglary. The elements of the offense, as defined in the statute, are properly embraced in the indictment.
*57In title 2, chapter 2, P. C., 1925, there is authority for the increase of penalty in a felony case less than capital where one has been previously convicted of a felony less than capital; and in article 63, P. C., 1925, it is said: “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”
Precedents giving application of the law are found in the case of Walthall v. State, 109 Texas Crim. Rep., 26.
The pleading in the present appeal charges that the appellant, prior to committing the offense of burglary for which he was tried, had previously been convicted of a felony of a like nature a number of times. The judgment assessing the penalty at confinement in the penitentiary for life is founded upon the assumption that the evidence adduced before the trial court supported the averments in the indictment.
Under the terms of article 760, C. C. P., 1925, the authority, of this court to consider the statement of facts and bills of exception is restricted to those filed within ninety days after notice of appeal is given. This court is precluded from considering either the statement of facts or bills of exception in the present instance. The motion for new trial was overruled on August 30, 1932. The statement of facts and bills of exception were filed November 29, 1932, from which it appears that there elapsed a period of ninety-one days after notice of appeal was given and before the statement of facts and bills of exception were filed. See Benson v. State, 85 Texas Crim. Rep., 126; Barges v. State, 86 Texas Crim. Rep., 231; Hill v. State, 92 Texas Crim. Rep., 58. Many other precedents will be found in Vernon’s Ann. Tex. C. C. P., vol. 3, 1932 supplement, page 13.
No error having been perceived, the judgement is affirmed.
Affirmed.