
    CASE 49 — INDICTMENT
    JANUARY 28.
    Evans vs. Commonwealth.
    APPEAL FROM METCALFE CIRCUIT COURT.
    1. On the dismissalof an appeal suspending the execution of the judg ment of the circuit court for a fine, ten per cent, damages will be awarded against the appellant.
    2. Unless the appellant prosecutes his appeal successfully, the practical result is an affirmance, which, in civil cases, as provided in section 904, Civil Code, renders him liable to ten per cent, damages on the • amount of the superseded judgment; and in penal cases, as provided in section 352, Criminal Code, he renders himself liable to ten per cent, damages on the amount of the suspended fine.
    John Rodman, Attorney General, For Appellee.
   JUDGE WILLIAMS

delivered the opinion oe the court:

The State having recovered a judgment for one thousand five hundred dollars against appellant, on an indictment for an assault and battery, he suspended the same by executing a bond as provided by section 344, Criminal Code.

The appeal being dismissed, the Attorney General of the State asks an award of ten per cent, damages on the amount of the judgment, as provided by section 352, Criminal Code, which directs damages in cases of affirmance of the judgment in appeals in penal cases wherein the judgment has been suspended. In expounding section 904, Civil Code, which is nearly in the same language, this court has held, that unless the appellant prosecutes his appeal successfully, the practical result is an affirmance, which renders him liable to the damages; and we must give the same construction to the same language of the Criminal Code. Ten per cent, damages on the amount of the judgment must be awarded.  