¶1The following facts appear, by admission and otherwise, upon the face of the record, to wit: In July, 1908, the defendant Cox gave bond in the sum of $300, with C. R. Ferrand as surety, for his appearance to answer the charge of retailing liquor without having obtained a license. In March, 1904, the case being called and the *570state being ready for trial, the defendant failed to appear, and there was- judgment nisi upon the bond. In May, 1904, the ease being again called, and, the state being again ready for trial, the defendant again failed to appear, whereupon the judgment on the bond was made final, and the defendant and his surety were condemned in solido in the sum of $300, with interest at 5 per cent., and costs amounting to $8.50. In June, 1904, the chief prosecuting witness died, and in August the defendant surrendered himself or was surrendered. In December following the •ease was again called for trial, and the state, after an unsuccessful effort to have it continued, entered a nolle prosequi, and thereupon the surety moved that the judgment on the bond be set aside and held satisfied by reason of the surrender of the defendant as stated. There was judgment denying the motion, and the mover has appealed. The state moves to dismiss the appeal on the ground that the case does not fall within the class to which the appellate jurisdiction •of this court extends.
¶2Opinion on Motion to Dismiss Appeal.
¶3The bond was forfeited under Rev. St. •§ 1032, as amended by Act No. 17, p. 23, of 1900, and it has been held that in such cases this court has jurisdiction, regardless of the amount involved, if the bond was given in a criminal prosecution within its jurisdictional power; the doctrine being that the matter of the forfeiture is attracted to the criminal prosecution. Society v. Cage, 45 La. Ann. 1394, 14 South. 42-2. And this ■doctrine may perhaps apply in case of a judgment in a proceeding to set aside a judgment of forfeiture. But the remaining question is, was the prosecution with which we are here concerned within the jurisdictional power of this court? It was instituted and conducted, so far as it went, under Rev. St. § 910, which authorizes the imposition ■of a fine of not less than $100, and not more than $500, or sentence of imprisonment for not less than 15 days, nor more than 4 months. Upon the other hand, the appellate jurisdiction of this court in criminal matters extends to cases in which “the punishment of death or imprisonment at hard labor may be inflicted, or a fine exceeding $300 or imprisonment exceeding six months is actually imposed.” Const. 1898, art. 85. It will be seen from this that in the class of eases first mentioned the question of the jurisdiction of this court is determined by the character of the offense, as measured by the punishment that may be inflicted, and hence is set at rest at the inception of the prosecution, but that in the class next mentioned the question whether an appeal will or will not lie is determined not by the penalty that may be inflicted, but by the penalty which is actually inflicted, and hence must await,for its determination the result of the prosecution. The case at bar belongs to the latter class, and, as no penalty was inflicted — no result in that respect reached — the condition precedent necessary to vest this court with jurisdiction has not been established.
¶4It is therefore ordered, adjudged, and decreed that the appeal herein be dismissed at the cost of the appellants.