
    John Solari v. The State.
    Notice of Appeal, given and entered of record in the court below, is an essential prerequisite to the appellate jurisdiction of this court. A record entry of such notice is the only evidence of it, and no presumption can supply its place. Even in a misdemeanor case, wherein a recognizance for an appeal is brought up in the transcript and recites that such notice was given, the record entry cannot be dispensed with or supplied by presumption.
    Appeal from the Criminal District Court for the county of Galveston. Tried below before the Hon. G. Cook.
    The appellant was indicted and convicted of keeping and maintaining, in the city of Galveston, a nuisance known as “Freedman’s Hall,” and a fine of $500 was assessed against him by the jury.
    
      His recognizance for an appeal appears in the transcript, and recites that he “gave notice, in open court, of appeal from said judgment to the Court of Appeals of the state.”
    
      George McCormick, Assistant Attorney General, for the State, moved to dismiss the appeal.
    No brief for the appellant.
   Ector, P. J.

The motion to dismiss the appeal taken herein, because no notice of appeal was given and entered in the court below, as is required by law, must be sustained. The Code of Criminal Procedure provides that “ an appeal is taken by giving notice thereof in open court, and having the same entered of record.” Art. 726.

In the case of Fairchild v. The State, 23 Texas, 176, the Supreme Court say: “ This notice and entry of it are made the evidence of record that an appeal has been taken. It must be perfected by a recognizance in cases of misdemeanor. Arts. 722, 723. Such recognizance being found in the record in this case renders it probab!e,that the notice was given, or intended to be given. But the positive language of the Code forbids the indulgence of this presumption, in the absence of the entry, which is so pointedly made the test by which it is to be determined whether an appeal has been taken or not. ’ ’ Motion sustained and appeal dismissed.

Dismissed.  