This case was dismissed at a previous sitting of this term of the court on the ground that no notice of appeal was embodied in the record, nor was there any judgment passing upon the motion for new trial.
Appellant has filed a motion for rehearing setting up certified copy of the memorandum upon the judge's docket, which memorandum on the docket shows that the motion for new trial was overruled, defendant excepted, gave notice of appeal to the Court of Criminal Appeals of Texas, and was given twenty days in which to file bills of exceptions and statement of facts, but this was not entered upon the record. Article 883, of the Code of Criminal Procedure, provides that an appeal is taken by giving notice thereof in open court and having the same entered of record. See also the decisions cited under said article in White's Code of Criminal Procedure. Nor can these orders be entered nunc pro tunc. See Quarles v. State, 37 Tex.Crim. Rep.. This being the condition of the record, the motion for rehearing is overruled.
Overruled.