¶1From a sentence condemning her to serve two years at hard labor-in the penitentiary, the defendant appeals.
¶2On Motion to Dismiss.
¶3The grounds of the motion are that the return day of the appeal was not fixed as required by Act 106 of 1908; the second, that the order of appeal was made and granted before the sentence and judgment were rendered.
¶4It is true, as alleged, there is a total ab-c sence of date.
¶5The motion for the appeal reads:
¶6“Appeal returnable according to law.”
¶7The order of appeal issued thereon was; equally as silent about the return of the appeal.
¶8The appeal is granted, and that is all.
¶9The motion of appeal, according to the record before us, was filed on the 25th day of one month. It was granted on the 25th day of the next month.
¶10When the motion was made for the appeal on the 25th day of January, the verdict had just been returned.
¶11Sentence was imposed only 30 days afterward, according to the record before us, was sufficient in itself to afford grounds to dismiss the appeal.
¶12Now the law granting the right of appeal, and suggesting what should be done to obtain an appeal, requires that a date “shall be fixed for the return of the appeal.”
¶13Heretofore this court has decided that, if it is evident there is failure to insert the correct date of the return in the order, the neglect or oversight will be considered as that of the district judge, and, from that point of view, the appellant was allowed, -none the less, to prosecute the appeal.
¶14In this case, as there is a total want of all date, we feel constrained to withhold the sanction of this court.
¶15*639There is some difference between a mistake in date, made by the district judge, and the total want of all date.
¶16In all cases heretofore decided upon the subject, there was at least an attempt made to comply with the law. But here there is a total want of all date.
¶17It does seem that in a case of that kind the appellant is not e'ntirely free from' oversight or negligence.
¶18We do not hesitate to thus pronounce, for, before arriving at this conclusion, we had studied the case as closely as we could, and had written the opinion on the merits, and had arrived at the conclusion that defendant is not entitled to a judgment of, reversal.
¶19The three bills of exceptions taken in the case were thoroughly considered.
¶20This decision will now serve no purpose, save that it affords .us the satisfaction of knowing that defendant’s rights as an appellant have not in any event 'been illegally prejudiced.
¶21Eor reasons assigned, it is therefore ordered, adjudged, and decreed that the appeal is dismissed.
¶22The failure to fix a return day in this case was, in my opinion, the fault of the judge, and hence not good ground for dismissal; but I concur in the decree, for the reason that the appeal was taken before sentence.