This is a motion to dismiss the appeal in the case of the appellant Rosauro Enriquez, based upon the ground that he had not perfected it in accordance with the provisions of the Code of Procedure in Criminal Actions.

An examination of the record shows that the decision of the lower court was rendered upon the 28th day of November, 1916, and pronounced upon the same day. The said appellant, on the 13th day of December, 1916, presented a motion for a new trial, which motion for a new trial was denied on the 27th day of February, 1917. The said Rosauro Enriquez presented his notice of appeal in writing upon the first day of March, 1917.

It is clear, therefore, that the appeal was not perfected within the time prescribed by section 43 of General Orders No. 58. The presentation of a motion for a new trial in criminal cases does not extend the time for the presentation of the appeal. (U. S. vs. Flemister, 1 Phil. Rep., 317; U. S. vs. Perez, 1 Phil. Rep., 322; U. S. vs. Recano, 4 Phil. Rep., 91; U. S. vs. Torrero, 8 Phil. Rep., 88; U. S. vs. Rota, 9 Phil. Rep., 426; U. S. vs. Court of First Instance of Manila, 24 Phil. Rep., 321.)

However, after the presentation of the motion in the present case, the attorney for the appellant presented a written statement from the clerk of the Court of First Instance of the Province of Rizal, which very feebly indicates that the appellant Rosauro Enriquez presented his notice of appeal in writing at the same time that his codefendant Pacifico de Guzman presented his, on the 28th day of November, 1916. Said clerk alleges as his opinion and belief that each of said appellants presented his notice of appeal on the same day, and that he (the clerk) was much surprised to learn that the appeal of Rosauro Enriquez was not included in the record. The attorney for the appellant, however, in the argument of the case, made no such contention. In view, however, of the doubt raised by the statement of the said clerk with reference to the question here presented, we are inclined to hold that the appeal of Rosauro Enriquez was perfected within the time prescribed by law; and that his notice of appeal in writing, filed with the clerk below, was lost through no fault of his.

The motion, therefore, is hereby denied.

Arellano, C. J., Carson, Araullo, Street, and Malcolm, JJ., concur.