
    Pink and James Lum v. The State.
    Supreme Court. Appeal in criminal case. Bond for costs, or affidavit.
    
    An appellant in a criminal case may be released on bail, pending tlie appeal, under $ 2339, code 1880. But lie must also give a bond or a deposit for costs, or make affidavit of inability to do so, under $ 2335. If this is not done, the appeal will not be entertained. To discharge a prisoner on bail after conviction without a compliance with both sections is unauthorized.
    Motion in supreme court.
    Pink and James Lum were convicted of assault and battery in the circuit court of Lincoln county, and after sentence were released on bail under § 2339, code 1880. The bond was in all respects regular, reciting an appeal to the supreme court, and being conditional for the surrender of the parties to receive judgment in case of affirmance. It was approved by the clerk of the circuit court. But no appeal-bond or deposit to cover costs was given., nor was an affidavit of inability to do either filed, as required by § 2335, and there was no prosecution of the appeal. Thereupon the attorney-general produced a transcript of the record and moved the court to docket and dismiss the cause for want of prosecution.
    
      T. M. Miller, attorney-general, for the state.
   Arnold, C. J.,

delivered the opinion, of the court.

There is no appeal-bond, or affidavit of inability to give such bond, or to make deposit of a sufficient sum of money to cover tbe estimated amount of costs accrued, and likely to accrue in the cause, as required by § 2335 of the code, and the judgment of the lower court has been superseded, and the prisoners discharged on bail, without authority of law.

Such bond, affidavit, or deposit, is required in order to stay the judgment from which an appeal is taken to this court, in all criminal cases; and taking bail and discharging the prisoner after conviction, on such appeal, is not authorized by § 2339 or any other provision of the code, until after § 2335 of the code has been complied with.

The appeal not having been taken and pérfected according to law, and there having been failure to'prosecute the same,

The motion to dismiss for the want of prosecution, is sustained.  