
    The State v. S. E. Boren.
    A party convicted on indictment having failed to prosecute an appeal as prayed for, it is the right of the State to have a capias issued for his apprehension, in order to enforce the judgment of the Court.
    Appeal from Panola. Tried below before Hon. C. A. Frazer.
    The appellee was indicted for betting at a certain gaming table, called rondo, and at the June Term, 1855, was convicted and fined ten dollars and costs ; he prayed for an appeal, and gave a recognizance to prosecute his appeal, &c. At the Spring Term, 1857, the appellee and his sureties, on recognizance, were called and failed to answer. The District Attorney having proved, by the Clerk of the District Court, that Boren had not prosecuted his appeal; that he had never called for the transcript of the record in this cause, and that it had never been sent to the Supreme Court, moved for a capias to apprehend said Boren, in order to enforce the judgment of the Court previously rendered, which was refused.
    
      Attorney General, for the State.
   Wheeler, J.

The defendant having failed to prosecute his appeal, had lost his right to do so, and the case stood as thoughno appeal had been taken. (Walen v. McLean, 14 Tex. R. 18.) It only remained for the Court to proceed to enforce it§ judgment. And as the presence and legal custody of the defendant was necessary for that purpose, it was the right of the State to have a capias issued for his apprehension, and it was error in the Court to refuse it, for which the judgment must be reversed and the cause remanded.

Reversed and remanded.  