
    The State v. Charles Fryber.
    Where a party had been convicted of a misdemeanor, and an appeal taken, but the transcript had not been filed, and the attorney general moved to affirm the judgment, the court reviewed Articles 732, 733, 734, and 738 of the Code of Criminal Procedure, and held, that because the certificate did not show whether the appeal was by the State or the defendant, the motion would not be sustained. (Paschal’s Dig., Arts. 3196, 3197, 3198, 3202.)
    Nothing but the opinion in this case was furnished to the Reporter.
    
   Donley, J.

A certificate has been filed in this court in the following words: The State of Texas v. Charles Fryber, Wo. 774. Indictment for selling spirituous and intoxicating liquors on Sunday at retail. Judgment rendered June 20, 1866. Wotice of appeal same day. Recognizance entered 22d June, 1866. Counsel for the State moved that the judgment of the district court be affirmed.

Art. 732, O. & W. Dig., tit. Code of Criminal Procedure, provides that the clerk shall, immediately after the adjournment of court at which appeals in criminal actions may have taken place, make out a certificate, under his seal of office, exhibiting a list of all such causes which have been decided, and in which either the State or defendant has appealed. This certificate shall show the style of the cause upon the docket, the offense of which the defendant stands accused, the day on which judgment was rendered, and the day on which the appeal was taken; which certified list he shall transmit, post paid, to the clerk of the Supreme Court at the proper place.

Article 733 provides, that the clerk shall file the certificate and notify the attorney general; and article 734 provides, when it appears by such certificate that an appeal has been taken by the defendant in a criminal action for misdemeanor, and the transcript is not filed within the time required by law for filing transcripts in civil actions, such cause may be entered upon the motion docket on motion of the attorney general, and the judgment of the district court shall be affirmed. Article 738 provides, that when an appeal is taken by the State, and the record is not filed in the Supreme Court within the time limited for filing transcripts in civil actions, the defendant’s counsel may suggest the facts to the court, and have the judgment of the district court affirmed, unless good cause be shown why the transcript has not been filed. The certificate in this ease is insufficient, in that it does not show by whom the. appeal was taken. If the State appealed, certainly the judgment should not be affirmed on motion of the State and at the cost of the defendant. The certificate not showing by whom*the appeal was taken, the motion to affirm is refused and dismissed. This ruling applies to the several cases embraced in the same certificate.

Dismissed.  