
    (57 South. 523.)
    No. 19,214.
    STATE v. HOLT.
    (Jan. 29, 1912.)
    
      (Syllabus by the Court.)
    
    ■Criminal Law (§ 1106*)— Appeal — Abandonment — Failure to File Transcript.
    When an appellant fails to file the transcript on the return day, it is an abandonment of the appeal, which will be dismissed by this court ex proprio motu. The ageement of counsel that the appellee will not move to dismiss the appeal on the ground that appellant failed to file the transcript on the return day will not affect the right or duty of this court to dismiss the appeal ex proprio motu.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2890-2892; Dec. Dig. § 1106.*]
    Appeal from Sixth Judicial District Court, Parish of Ouachita; J. O. Madison, Judge.
    Charley Holt was charged with a simple assault. From a decree sustaining a plea of autre fois convict and discharging the accused, the State appeals.
    Dismissed.
    Walter Guión, Atty. Gen., and Fred M. Odom, Dist. Atty. (G. A. Gondran, of counsel), for the State. Clarke & Sholars, for appellee.
   BREAUX, C. J.

The state of Louisiana appeals from a decree of the judge of the district court sustaining defendant’s plea of autre fois convict, and discharging the accused. Defendant is a woman, although her name is Charley Holt.

As relates to her plea, it appears that she was charged in the city court with a simple assault in violation of a state law. The state was not represented in the city court by the district attorney either in having the charge of simple assault preferred or in the prosecution of the case.

Subsequent to the trial and conviction of the defendant in the city court of simple assault, the district attorney filed an information against defendant charging her with having committed the crime of assault with intent to commit murder.

The defendant through counsel filed the plea of autre fois convict, which was sustained by the district court. She was fined by the city court, and has paid the fine.

One of the points for decision presented in the motion to dismiss the appeal is that the 15 days provided by law to file the appeal in the Supreme Court was not allowed in that the order of appeal made the appeal returnable in 10 days; that the minimum delay for such an appeal is 15 days, a requirement that the district court failed to observe.

As to the order of appeal, it is not strictly speaking in legal form, for after mentioning that the judgment discharging the defendant was read and signed, it is stated that an appeal was granted to this court, returnable on the thirtieth instant; said appeal being made returnable according to law.

We are of opinion that the appeal should be dismissed, but not on the ground urged for dismissing the appeal. There are sew eral irregularities. There was an indictment found by the grand jury and presented to the district court. There was a motion made to quash this indictment, and it does not appear that the motion was overruled. ■ None the less, thereafter a bill of information was filed. As no objection was urged on that ground, it is of no moment and will be passed without further comment, except that in the agreed facts reference is made only to the indictment, and not to the bill of information. That is, facts were agreed to upon which defendant’s points of law were to be considered and decided under the indictment against her, and nothing is said in the agreed statement about 'the information.

Be that as it may, there is further irregularity, an order of appeal to which we have before referred to in stating the case, but it does not appear that it was applied for by the state. It is a lost order in the record, for which, on the face of the record, no one seems to be responsible.

The district court in granting an order of appeal always grants it on the motion of the party applying for the appeal, or his attorney.

But the last error is not only an irregularity. It is a fatal illegality. The judge of the district court granted an extension of time within which to file the appeal in the district court. Such extension under the law is granted by this court, and not by the court of first instance.

The return day had long since elapsed when the record was -filed here. The counsel for defendant only bound himself not to take an exception “to the failure to lodge the transcript in the appellate court.” He waived nothing. He only promised not to file an exception; but, as no exception is necessary in order to dismiss the appeal on the ground stated, it will be dismissed.

An appeal was dismissed ex proprio motu on the ground stated in Pierce v. Cushing, 33 La. Ann. 401, affirmed in Holz v. Pishel, 40 La. Ann. 298, 3 South. 888, and reaffirmed in Succession of Llula, 42 La. Ann. 475, 7 South. 585.

Failure to file the transcript is an abandonment. State v. Clark, 49 La. Ann. 780, 22 South. 257; Building Association v. Church, 49 La. Ann. 880, 21 South. 517; Digest, p. 45, No. 16b.

An accused cannot be heard to plead guilty in this court, nor can he waive illegalities that may be serious.

As to the plea of autre fois convict, it will not be passed upon for it is not necessary.

The appeal is dismissed.  