Appellant was convicted of the theft of one head of cattle, and sentenced to serve two years in the penitentiary therefor. *Page 439

We find from the record that the notice of appeal to this court does not show to have been entered in the minutes of the trial court. It is necessary that such notice of appeal be passed into the minutes of said court, and such be shown in the record. This appeal will, therefore, be dismissed.

The record having been perfected, the appeal will be reinstated and the case considered on its merits.

It appears from the record that notice of appeal was given on March 24, 1938. The statement of facts accompanying the transcript was filed on June 30, 1938, which was 98 days after notice of appeal. Thus, the filing was too late. Under the terms of Art. 760, C. C. P., the statement of facts must be filed within 90 days from the date notice of appeal is given.

In the absence of the statement of facts and bills of exception, nothing is presented for review which would authorize this court in interfering with the conviction.

The judgment is affirmed.