
    Dock Smith v. The State.
    No. 4142.
    Decided June 21, 1916.
    1. —Vagrancy—Custody—Motion for New Trial.
    Where the motion for new trial recited that defendant had failed to enter into a recognizance and was committed to jail, it sufficiently showed that appellant was in custody.
    2. —Same—Statement of Facts—Bill of Exceptions—Misdemeanor—^Rehearing.
    In the absence of an order authorizing the filing of bills of exceptions and statement of facts after the adjournment of the County Court for the term, they must be stricken from the record and the cause affirmed; however, if there is such order it may be shown on rehearing.
    
      Appeal from the County Court of Wichita. Tried below before the Hon. Harvey Harris.
    Appeal from a conviction of vagrancy; penalty, a fine of one hundred dollars.
    The opinion states the case.
    Ho brief for appellant.
    
      G. G. McDonald, Assistant Attorney General, for the State.
   HARPER, Judge.

Appellant was convicted of vagrancy, and prosecutes this appeal. The State moves to dismiss the appeal because there is no affirmative showing made that appellant is confined in jail and no recognizance appears in the record.

We think the order overruling the motion for a new trial sufficiently evidences that appellant is confined in jail, it stating that “said defendant having failed to enter into a recognizance he is now committed to jail until the decision of the Court of Criminal Appeals can be made and received”; therefore, the motion to dismiss the appeal is overruled.

This being a misdemeanor, and there being no order in the record authorizing the filing of the bills of exception and statement of facts after the adjournment of court for the term, the State moves to strike them from the transcript. This motion, under the law, must be sustained. However, if appellant did in term time have an order entered granting him time after the adjournment of court fop the term in which to prepare and file a statement of facts and bills of exception, such showing can be made on rehearing, and the record will be then considered.

Without a statement of the evidence, or any bill of exception, there is no question presented we can review.

The judgment is affirmed.

Affirmed.  