Appellant sought release from the custody of the sheriff of Hopkins County through habeas corpus proceedings, and was remanded to custody. Hence this attempted appeal.
It appears from the transcript that the hearing was had in vacation. The transcript bears no certificate of the trial judge but only that of the clerk of the district court of Hopkins County. Art. 857, C. C. P., provides, in substance, that, when the proceedings on habeas corpus take place before the court in session, the transcript shall be prepared and certified by the clerk, but when had in vacation the transcript may be prepared by any person under the direction of the judge and *Page 389 certified by the judge. The failure to comply with the statute necessitates a dismissal of the appeal. Ex parte Shaffer,92 S.W.2d 250.
Further, it is observed that the record fails to show that notice of appeal was given. This omission also requires a dismissal of the appeal.
Appellant has filed a motion in which he requests that he be permitted to withdraw the transcript in order that he may have it certified by the trial judge in accordance with the requirements of Art. 857, supra. The motion is granted and the clerk of this court is directed to return the transcript on file here to the clerk of the district court of Hopkins County.
Appellant is granted fifteen days from this date in which to have the record corrected and the appeal properly perfected.
The appeal is dismissed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON THE MERITS.