¶1The motion to dismiss this appeal must be sustained.
¶2In the Code of Criminal Procedure it is provided, that “ an appeal is taken by giving notice thereof in open court, and having the same entered of record.” (Art. 726.)
¶3’ This notice, and the entry of it, are made the evidence of record, that an appeal has been taken. It must be perfected by a recognisance in cases of misdemeanor. (Art. 722-3.) Such recognisance being found in the record in this case, .renders it probable 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 point*177edly made the test, by which it is to be determined, whether an appeal has been taken or not. Motion sustained.
¶4Appeal dismissed.