Appellant was convicted in the District Court of Kaufman County of the offense of possessing liquor under the terms of what is known as the Dean Law, Acts Second Called Session, Thirty-sixth Legislature, page 228, and his punishment fixed at confinement in the penitentiary for a term of one year.
The State has filed a motion asking for the dismissal of this case because the record shows neither a recognizance nor the fact that appellant is in jail. The authorities cited by the State in support of this motion will be found upon examination to be misdemeanor cases, and we understand the rule contended for by the State to apply only to misdemeanor cases. On appeal in a felony case when the record does not contain a recognizance and bail bond, the presumption of this court is, unless the opposite is made to affirmatively appear, that *Page 130 the appellant is in jail. That portion of the motion of the State is therefore denied.
The State also moves to dismiss this appeal because the record does not contain a sentence. An examination of the record shows this ground of the motion to be well taken.
For the reason that the record contains no sentence, the appeal will be dismissed.
Dismissed.
ON REHEARING. March 30, 1921.