
    James Elmore v. The State.
    Affirmance on Certificate in Misdemeanors. — When a party who has appealed from a conviction of misdemeanor fails to file the transcript in this court within the time prescribed by law, the cause may, on motion of the attorney or assistant attorney general, accompanied by the proper certificate, be entered on the docket of this court, and the judgment below be affirmed.
    On certificate of the clerk of the District Court of Delta County, exhibiting a judgment of said court, rendered August 7, 1876, against James Elmore, on a verdict finding him guilty of aggravated assault, and assessing against him a fine of $100. The judgment itself stated that notice of appeal was given. The clerk certified that no transcript had been demanded or forwarded,
    
      George McCormick, Assistant Attorney General,
    filed a written motion, based on the certificate, and asked that the cause be docketed and the judgment be affirmed.
   White, J.

The appellant, having been convicted of an aggravated assault in the lower court, made a motion to arrest the judgment, which being overruled, he gave notice of appeal in open court. Appellant has not filed in this court the transcript of the record of the case in the court below, and, the time within which such record should by requirement of law have been filed having elapsed, the assistant attorney general moves the court to affirm the judgment or certificate.

The rule of practice in such cases is laid down in the Code of Criminal Procedure as follows: The district clerk shall, immediately after the adjournment of the court at which appeals in criminal actions may have been taken, 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)"the 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 the judgment was rendered, and the day on which the appeal was taken ; which certified list he shall transmit, postpaid, to the clerk of the Supreme Court (Court of Appeals) at the proper place.” Pasc. Dig., art. 3196.

“The clerk of the Supreme Court (Court of Appeals) shall file the certificate provided for in the preceding article, and notify the attorney general that the same has been received.” Pasc. Dig., art. 3197.

“ 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 cases, such cause may be entered on the docket, on motion of the attorney general, and the judgment of the District Court (or County Court) shall be affirmed.” Pase. Dig., art. 3198.

The motion of the assistant attorney general is sustained, and the judgment of the lower court in this case is affirmed.

Affirmed.  