On Motion to Dismiss.
SOMMERVILLE, J.[1] The Attorney General has moved to dismiss this appeal, on the ground—
“that the motion and order made and granted in and by the district court were not made and granted in accordance with law, as provided by Act 106 of 1908, in that the motion and order failed to fix a return day.”
This record discloses no written motion of appeal prepared by counsel for the accused; the motion being disclosed merely by the minute entry, which is as follows:
“On motion of counsel for defendant, it is ordered that said defendant, Isidore Augustus, be granted an appeal from the verdict and sentence in this case, returnable before the Supreme Court of this state according to law.” tl
This minute entry clearly shows that defendant’s counsel moved for an appeal to the Supreme Court, “returnable according to law.” That was all that the law required him to do. Act 106 of 1908 makes it the duty of the judge to—
“fix the return day in all cases, provided that the judge shall fix the return day in the order granting the appeal which shall not be less than fifteen nor more than sixty days from the date of the order, except by consent of parties.”
Thus the duty of fixing the return day devolves exclusively upon the judge, and if he fixes a wrong return day, or fixes no return day at all, the fault is the judge’s, and is not imputable to the appellant, and he cannot be prejudiced thereby. The motion to dismiss is therefore overruled. State v. Dellwood, 33 La. Ann. 1229; State v. Balize, 38 La. Ann. 542; Hays v. Mayer, 117 La. 1067, 42 South. *619505, and the authorities collated in Marr’s Criminal Jurisprudence, p. 892, note “b.”