Concurring
I concur with my associates as to the result but disag*ree with the reasoning.
The respondent was required to furnish bail to the January Term, 1956 on his appeal and because of this fact it was determined that he thereby received notice that the magistrate had erroneously recorded his appeal to the wrong term. It is held in substance that because of such notice as the respondent received, through the act of giving bail to the wrong term, he participated in the error on the part of the magistrate to his detriment. It should be noted that to the point of giving bail, the respondent had satisfied the statutory requirements of an appeal and he had taken all the necessary action to produce the status of an appeal. In support of the reasoning in the majority opinion that the respondent has the responsibility for taking a proper appeal, the case of State v. Quinn, 96 Me. is cited. I differentiate the circumstances of the Quinn case with the one now under consideration. In the Quinn case the respondent was adjudged guilty by the magistrate in March. He took an appeal specifically to the September Term of the Supreme *145Judicial Court in Franklin County but the next term following the March in which he was convicted was the June Term. The statute then in force regarding appeals required an appeal to the next term and, as the September Term was not the next term, it was determined that the appeal was void and a nullity. The case holds that it was the duty of the respondent to appeal to the proper court and the proper term of the court. In the Quinn case the respondent, by election, appealed to the wrong term of court. In the present case the respondent appealed to the proper term of court in so far as any affirmative action on his part was concerned, thus complying with the terms of the appeal statute.
The process of appeal concerned here is born of statute and is only effective in so far as the proceedings come within its provisions. The respondent according to the agreed statement “requested an appeal”----“intended to appeal, and thought he was appealing to the next criminal term of the Superior Court for said County.” This appeal was then noted by the magistrate to the January Term, 1956 and not to the next criminal term of the Superior Court. For this judicial act there was no authority under the statute and the appeal was then and there a nullity. When the alleged appeal reached the Superior Court, the County Attorney asked for its dismissal on the grounds that it was invalid. The respondent, no doubt, desired a jury trial and it can be properly assumed that that was the reason for his appeal. According to the record he was without attorney in the lower court. This respondent was accused of a crime and was attempting to take advantage of his right of appeal. He did everything that the statute required him to do by advising the court of his desire to appeal. He relied upon the court to legally record his appeal in order that his constitutional rights of trial by jury be made available to him. He now finds himself in the unenviable position of be*146ing deprived of a trial by jury and his case returned to the court of original jurisdiction where the sentence there imposed may be executed unless it be determined that the court lost its jurisdiction over the person of the respondent when it improperly admitted him to bail to appear at the January Term, 1956.
I agree with my associates that the entry should be,
Appeal dismissed.