The doctrine laid down by the State in its motion for rehearing that it is incumbent on the defendant to show that his previous case has been appealed and reversed is borne out by the cases of Tall v. Commonwealth, (Ky.) 110 S.W. 425, and Gragg v. Commonwealth, (Ky.) 104 S.W. 285, which hold that such is a matter of defense. We think this is a correct legal proposition. However, in the present instance, the State relieved the appellant of the burden of proving that the Moore County case had been appealed, thus leaving us with a matter brought in by the State incompleted and with no knowledge as to what was finally done in the disposition of such appeal to this court.
In the Gould case, 146 S.W. 172, 177, cited by the State, we find the following statement: "As to the second objection, the judgment on its face shows to be a final judgment, and, if a new trial had been granted or the judgment appealed from, it was incumbent on defendant to show these facts in the bill of exceptions." *Page 118
However, in the present case, the State showed that the judgment had been appealed from, thus itself raising the question as to what disposition was made of such appeal, and the only answer it gives is the testimony of the District Clerk of Moore County who testified that the appellant was tried for burglary and convicted in Moore County; that a motion for new trial was filed and overruled, and notice of appeal was given but that the Clerk never prepared a transcript in the case, giving no reason therefor; that the records of his court show that a notice of appeal was given and that he issued a commitment to the sheriff ordering him to take appellant to the penitentiary; that he did not know what disposition of the case was made by the Court of Criminal Appeals.
The State introduced the order of the trial court overruling the motion for new trial in Cause No. 104 in the District Court of Moore County, Texas, for the purpose of enhancing the punishment, a portion of which order we quote: "To which action of the Court in denying and overruling said motion the defendant duly excepted in open court and gave notice of appeal to the Court of Criminal Appeals of the State of Texas, sitting and holding at Austin, Travis County, Texas, and the Defendant is hereby granted (80) eighty days from this date in which to prepare and file a statement of facts and bills of exception."
Thus, it is clearly shown by the State's own proof that unless such appeal has been properly withdrawn or acted upon by the Court of Criminal Appeals such conviction is not final. If not final, then such conviction cannot be utilized for the purpose of enhancing the punishment in the present case.
There are no further formalities necessary in order to cause an appeal in any criminal case other than to give notice of appeal in open court; and the failure of any officer to perform his plain duty cannot deprive a person convicted of crime of his legal right to have this court review the proceedings in his case. Unless such notice of appeal was properly withdrawn, Cause No. 104 should have been presented to this court, at least by a transcript showing the proceedings had therein; and the refusal or failure of any officer to perform his duty in connection therewith would not deprive the appellant of any of his rights therein.
We see no reason to recede from the views expressed in the original opinion. The motion for rehearing is therefore overruled. *Page 119