¶1(dissenting): I concede the statute involved is not as clear as it should be. Our problem nevertheless is to ascertain the legislative intent. I agree the statute contains no provision for merely indicating an intention to appeal and that it recognizes only an actual appeal. It does seem clear to me, however, that th.e law*597makers intended some immediate action should be taken upon rendition of judgment to save the right of appeal and to stay execution of the sentence. Manifestly the immediate action required was not the filing of the appeal bond because the lawmakers allowed ten days to do that. We, therefore, have for consideration the provision requiring some immediate action to stay all further proceedings upon the judgment and also the provision allowing ten days to file a bond.
¶2What is the thing the lawmakers intended should be done immediately upon rendition of judgment in order to stay all further proceedings? The statute states that thing is the taking of an appeal. It says . . which appeal shall be taken immediately upon the rendition of such judgment, and shall stay all further proceedings upon such judgment.”
¶3So, according to the statute, the taking of such appeal immediately stays the execution of sentence.
¶4We next come to the strange wording in the statute, to wit: “No appeal shall be granted or proceedings stayed unless the appellant shall within ten days after the rendition of such judgment enter into a recognizance. . . .” (Emphasis supplied.)
¶5It will be observed the statute at that point for the first time employs, not the words “the defendant” as previously, but the words “the appellant” indicating the lawmakers were now talking about an appeal which had been taken. It seems to me the words “No appeal shall be granted”' must be construed to have been intended to mean the appeal should fail unless the bond were filed within ten days from the rendition of judgment. So construed this last provision is in harmony with the previous requirement that an appeal must be taken immediately upon rendition of judgment. If construed otherwise the requirement of an immediate appeal is completely nullified and becomes entirely meaningless.
¶6While as first indicated the statute is not a model of clarity it does seem to me that what the lawmakers intended to do was to provide for the convicted person a speedy and simple means of staying execution of sentence by an appeal from the judgment. They then extended the time for filing the bond from twenty-four hours to ten days, apparently believing that the previous provision of twenty-four hours might be too short a time to supply the bond in some cases. I think they intended that if the necessary bond were not filed *598within ten days the appeal should no longer be effective. Since no appeal was taken as required by the statute there is no- appeal pending and the writ should be denied.
¶7While we might believe more time should be allowed for an appeal that is a subject for legislative consideration and not for the courts. The legislature may have included the provision for immediate appeal believing it was to the advantage of the convicted person as otherwise he would be subject to commitment at once in the absence of ability to make bond immediately.