
    STATE, Plaintiff-Appellee, v. WEAVER, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 197.
    Decided October 20, 1955.
    William S. Culp, West Jefferson, for plaintiff-appellee.
    Vradelis & McCray, Anthony J. Vradelis, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for failure of appellant to file his brief within the time prescribed by Rule VII of this Court.

The appeal is in a criminal prosecution. The original action was against appellant in Mayor’s Court. From sentence and judgment an appeal was prosecuted to the Court of Common Pleas where the judgment of the Mayor’s Court was affirmed. This appeal is from the judgment of the Common Pleas Court.

We have held on three cases that Rule VII does not apply to appeals in criminal cases: State v. Jarcho, 65 Oh Ap 417; State v. Thompsett et al, 65 Oh Ap 378 and State, ex rel. Merrill v. Moore, 83 Oh Ap 525. We had, however, held that:

“The provisions of §13459-3 GC, as to the time of filing appellant’s briefs in criminal cases are mandatory, and are in no wise governed by the rules of the Courts of Appeals.” 3rd Syl. State v. Jarcho, supra.

But the Supreme Court in the last case of State v. Nickles, 159 Oh St 353, holds that §13459-3 GC, is merely directory.

The briefs of appellant were filed on October 1, 1955.

In the situation thus presented, the motion will be overruled.

The delay in filing appellant’s brief is unfortunate and no cause therefor appears. We will not delay the presentation of this case on its merits. If counsel for appellee desires we will assign the appeal for hearing at Dayton so that it may be adjudicated at any early date.

MILLER, PJ, HORNBECK, J, concur.  