¶2At the February term of the district court for the county of Atchison for the year 1862, an indictment was found against King by the grand jury for said county, containing three counts, for official misconduct in the office of treasurer of said county of Atchison.
¶3At the September term of the court for said county the defendant was arraigned upon said indictment and plead “not guilty,” and thereupon the cause was continued until the February term of said court, 1863, at which latter term the defendant, by his counsel, filed a motion to quash the indictment.
¶4First. Because the first count does not charge a public offense.
¶5Second. Because the second count is not certain, and docs not sufficiently charge said offense.
¶6Uppn consideration of this motion, the court sustained it and ordered the indictment to be quashed, vacated and held for naught, and the defendant was discharged.
¶7Upon the motion to quash, the district attorney objected that the motion came too late after a plea of not guilty entered, and the court having overruled the objection, files a transcript of the record as for an appeal, on behalf of the state, against said ruling.
¶8Upon examination of the record filed, it appears that due notice of the appeal was given to, and accepted by, the clerk of the court, but it does not appear that any notice whatever was given to the defendant King. In the case of Carr vs. The State, decided at the last January term of this court, it was held by Cobb, C. J., that the service of the notice of appeal on the clerk and appellee or district attorney constitutes the appeal, and upon that alone the jurisdiction of this court, to review the judgments and decisions of' the court below, rests.
¶9• It is, therefore, an important part of the record, and it should appear in the transcript filed, that this court may see, *468and the record may show, that it has jurisdiction of the cause.
¶10The court cannot assume the existence of a portion of the record, not before it, nor render a judgment which, upon the face of its own record, would appear to bo without jurisdiction.
¶11For these reasons, which we deem satisfactory and conclusive, the proceedings in this case must be dismissed at the cost of the attempted appellant.