Judgment of conviction was rendered on June 9th, and the first motion for a new trial was filed and overruled the same day. The defendant excepted, gave notice of appeal, and entered into a recognizance. On the 10th of June, the defendant filed another motion for a new trial.- The county attorney moved the court to dismiss this second motion for new trial, because the court had no jurisdiction of the case,— the defendant having perfected his appeal. There was no action of the court had upon this motion of the county attorney; but, on the 11th of June, the court granted the defendant a new trial,—he dismissing his appeal. The county attorney had a transcript prepared, and brings the cause to this court, and asks an affirmance of the judgment.
The second motion was filed in time; and if it had not been, the court, being satisfied that injustice had been done the defendant, certainly had the right to correct the error, upon his request and during the term, by granting him, a new trial.
If this court were to affirm the judgment, we are of opinion that on the return of the mandate to the court below there would be some trouble attending the issuance of an execution, there being no judgment for its basis. This appeal is dismissed.
Ordered accordingly.