It appearing that the state has failed to defend with proper diligence against the appeal of the defendant from the judgment of the Appellate Division of the Circuit Court so far as it affirmed the judgment of the Circuit Court in the tenth circuit finding the defendant guilty under the second count of the information, it is ordered that the judgments of the trial court and the Appellate Division under the second count are set aside and the case is remanded with direction to render judgment dismissing the second count of the information.