
    Henry Fricke v. The State.
    Appeal — New Trial—Jurisdiction.— On being convicted of misdemeanor the defendant .moved for a new trial, and on the overruling of that motion gave notice of appeal and entered into recognizance therefor. On the next day he filed another motion for a new trial, which the county attorney moved the court to dismiss because the defendant's appeal had been perfected. The trial court allowed the defendant to dismiss his appeal, and granted him a new trial; but the county attorney sends a transcript to this court on the ground that the award of a new trial by the court below was a nullity. Held, that the action of the court below was not beyond its jurisdiction while its term lasted, nor was there error in the award of a new trial.
    
      Appeal from the County Court of Guadalupe. Tried below before the Hon. W. P. H. Douglass, County Judge.
    The prosecution was for maliciously killing a mule belonging to one Fritz.
    No brief for the appellant.
    H. Chilton, Assistant Attorney General, for the State.
   Hurt, J.

Judgment of conviction was rendered on June 9th, and the first motion for a new trial was filed and overruled the same day. The defendant excepted, gave notice of appeal, and entered into a recognizance. On the 10th of June, the defendant filed another motion for a new trial.- The county attorney moved the court to dismiss this second motion for new trial, because the court had no jurisdiction of the case,— the defendant having perfected his appeal. There was no action of the court had upon this motion of the county attorney; but, on the 11th of June, the court granted the defendant a new trial,—he dismissing his appeal. The county attorney had a transcript prepared, and brings the cause to this court, and asks an affirmance of the judgment.

The second motion was filed in time; and if it had not been, the court, being satisfied that injustice had been done the defendant, certainly had the right to correct the error, upon his request and during the term, by granting him, a new trial.

If this court were to affirm the judgment, we are of opinion that on the return of the mandate to the court below there would be some trouble attending the issuance of an execution, there being no judgment for its basis. This appeal is dismissed.

Ordered accordingly.  