¶1The motion to dismiss the appeal taken herein, because no notice of appeal was given and entered in the court below, as is required by law, must be sustained. The Code of Criminal Procedure provides that “ an appeal is taken by giving notice thereof in open court, and having the same entered of record.” Art. 726.
¶2In the case of Fairchild v. The State, 23 Texas, 176, the Supreme Court say: “ This notice and entry of it are made the evidence of record that an appeal has been taken. It must be perfected by a recognizance in cases of misdemeanor. Arts. 722, 723. Such recognizance being found in the record in this case renders it probab!e,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 pointedly made the test by which it is to be determined whether an appeal has been taken or not. ’ ’ Motion sustained and appeal dismissed.
¶3Dismissed.