Aрpellant was convicted at the August Term, 1907, of -the offense of seduction. Motion for а new trial was overruled1 'and notice of appeal was given. On account of thе sickness of the judge or for some cause, sentence was not pronounced аt that term of the court. Sentence was, however, at the following January Term, passed! upon appellant. Hnder thi's state of the case, the question is, had the court the lеgal authority to pass sentence when he did. tinder our statute and decisions this question must he аnswered in the negative.
Article 837 Criminal Code Procedure reads as follows: “Where, from аny cause whatever, there is a failure to enter judgment and pronounce sentence upon conviction 'during the term, the judgment may he entered! and sentence pronounced at any succeeding term of the court, unless a new trial has been granted, or thе judgment arrested, or 'an appeal has been taken.” Article 884, Criminal Code Procеdure, provides: “The effect of an appeal is to suspend and arrest ell further рroceedings in the case in the court in which the conviction was had until the judgment of the appellate court is received by the court from which the appeal is takеn; provided, that in cases where, after notice of appeal has been givеn, the record or any portion thereof is lost or destroyed1, it may be substituted in the lower сourt, if said court he then in session, 'and. when so substituted the transcript may he prepared аnd sent up as in other cases. In case the court from which the appeal was tаken be not then in session, the Court of Appeals -shall postpone the considerаtion of such appeal until the next term of said court from which
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said appeal wаs taken, and the said record shall be substituted at said 'term, as in other cases.” This latter article has been construed in many decisions. These decisions hold that prior to the adoption of the above article, in cases where 'an appeal had beеn taken, the rule was that the appeal suspended all proceedings in the trial court, and it had no authority to 'amend or substitute the record. Since the enactment of thе latter article, however, it has been held to mean that after notice of aрpeal has been given, and pending appeal to this court, the court in which the conviction occurred can take no further steps with reference to the case until this court has finally disposed of such appeal, except where some portion of the record has been lost or destroyed after the notice of aрpeal, in which case the lost or destroyed portion may be substituted. Going ‘back to аrticle 837, supra, it has been held that where motion for new trial has been overruled, 'and nоtice of appeal given, but no entry of final judgment, a judgment subsequently entered nunc pro tune is without authority and void. Estes v. State,
Finding the recоrd in this condition and no legal sentence in the record, it is the duty of this court to dismiss this appеal with instructions to the trial court to enter a proper sentence at its next term of court. The appeal is, therefore, dismissed.
Dismissed.
Bamsey, Judge, absent.