
    S. D. Long v. The State.
    1. Notice of Appeal. — The Code is imperative and mandatory in its requirement that the notice of an appeal shall not only be given in open court, but be entered of record.
    
      2. Same. — An entry upon the judge’s docket that “the defendant gives notice of appeal ” is not an entry “ of record,” nor tantamount thereto.
    8. Same—Practice nr this Court. — A transcript of a felony case contained no notice of appeal other than an entry transcribed from the judge’s docket. This court, on motion of the attorney general, dismisses the appeal, hut without prejudice to whatever rights the appellant may have under article 3192, Paschal’s Digest, which provides that an appeal, if demanded, shall he allowed after sentence.
    Appeal from the District Court of Falls. Tried below before the Hon. L. C. Alexander.
    The conviction was for the theft of a cow, and allotted to the appellant five years’ sojourn in the penitentiary.
    
      George McOormick, Assistant Attorney General,
    for the State, moved to dismiss the appeal, because notice of appeal had not been given in open court and entered of record.
    
      W. B. Forde, for the appellant.
   White, J.

For the reason that a number of errors were apparent upon the record as originally sent up, this court, at a former day of the term, awarded a certiorari to bring up a more perfect record. Both records are now before us, and the assistant attorney general moves to dismiss the appeal, because there is no such record entry of the notice of appeal by defendant as the law requires. To our mind the statute is plain and unambiguous :

“An appeal may be taken by the defendant at any time during the term of the court at which the conviction was had.” Pasc. Dig., art. 3189.
“An appeal is taken by giving notice thereof in open court, and having the same entered of record.” Pasc. Dig., art. 3190.

This statute is mandatory and imperative. Hicklin v. The State, 31 Texas, 492; Hughes v. The State, 33 Texas, 683. The notice of appeal in this case was not entered of record, though the clerk certifies that the notes made by the judge upon his docket show that defendant did give notice of appeal. The entries upon the judge’s docket will not supply the place of, or supersede the necessity for, an entry upon the record. Forest v. Rawlings, 40 Texas, 502.

The motion of the assistant attorney general must be sustained, and this appeal be dismissed, because the district clerk of Falls County failed to perform a plain and simple duty required of him by law.

The appeal is dismissed, but without prejudice to any rights which the defendant may have under article 3192, Paschal’s Digest, Avhieli reads as follows :

61 When the defendant fails to appeal until after sentence has been pronounced, the appeal shall nevertheless be allowed if demanded, and has the effect of suspending the execution of the sentence, and all other proceedings, as fully as if taken at the proper time.”

Appeal dismissed.  