106 P. 535 | Okla. Crim. App. | 1910
The state moves to dismiss this appeal upon two grounds, viz.: First, that the pretended case-made does not contain the judgment of the trial court, from which defendant prosecutes this appeal and which he seeks to have reversed. Second, that the petition in error alleges that judgment was rendered against defendant on the 25th day of May, 1908, and that the alleged case-made was not served within the time prescribed by law for such service, and that the county *368 judge had not granted an order extending the time within which the case must be served.
First. Section 6951, Snyder's Comp. Laws Okla. 1909, among other things, provides:
"The plaintiff in error shall file with his petition in error a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made, as hereinafter provided, or a copy thereof. The plaintiff in error shall attach to and file with the petition in error the original case-made filed in the court below, or a certified transcript of the record of said court."
It is seen from this that the statute in plain and mandatory language requires that the judgment from which the appeal is prosecuted shall be presented to us by the transcript of the proceedings or embodied in the case-made. In either event the record so presented must be certified to as the law directs; if not so certified to, this court would have no means of judging of its authenticity.
In McLellan v. State,
"This question was passed upon by the Supreme Court of Oklahoma Territory in Sproat v. Durland,
There is no transcript of the record in this case certified to by the clerk of the court. What purports to be the case-made does not contain the judgment. Under our statutes and the former adjudications of the Supreme Court of Oklahoma and of this court, we are without jurisdiction to consider this appeal because the judgment of conviction is not in what purports to be the record before us.
Second. Section 6951, Snyder's Comp. Laws Okla., among other things, provides:
"The case so made, or a copy thereof, shall within thirty days after the judgment or order is entered be served upon the opposite party, or his attorney, who may, within three days thereafter, *370 suggest amendments thereto in writing, and present the same to the party making the case, or his attorney."
It is alleged in the petition in error filed in this case that the judgment was rendered against the defendant on the 25th day of May, 1908. In what purports to be the case-made, we find the following:
"I, the undersigned attorney for the state in the foregoing suit, certify that the foregoing case was duly served on me this 25th day of June, 1908. Joe S. Eaton, Prosecuting Attorney, by Geo. C. Beidleman, Asst. County Atty."
The month of May has 31 days. So, excluding the day on which the judgment was rendered and the day on which service of what is claimed to be the case-made was had, the 30 days prescribed by the statute within which the case-made must be served had expired. It is true that the trial court had the power to extend the time within which a case-made might be served. But no such extension is shown in this record. Therefore when the time prescribed by statute had expired, no court or judge had the power to extend the time for so doing. This has been repeatedly passed upon by the Supreme Court of Oklahoma. In Abel v. Blair,
"This grant of additional time, made on July 3, 1894, for 60 days, expired on the 1st day of September 1894, and the judge of the district court had no power, on September 5, 1894, to grant any additional time, and the service of the case-made, and the settlement of the case-made served after the time for making and serving the same had elapsed, were void. Aetna Life Insurance Co.v. Koons,
In Polson v. Purcell,
"The record shows that the judgment of the district court was rendered on the 24th day of November, 1893, and the plaintiff in error given 60 days to make and serve case-made. It further shows that on February 1, 1894, the plaintiff in error, by his attorney, made a motion to be granted a further extension of time of 30 days to make and serve his case-made, and to this motion is attached the affidavit of his attorney that he had been unable to prepare and appeal and serve case-made in the cause. The record shows an acceptance of service of case-made by the attorneys for the defendants in error, but does not show when it was served. The record should always affirmatively show that the case-made was served in time. This record not only does not do this, but it does show, by the affidavit of appellant's own attorney, that it was not served in time, and that was his reason for getting a further extension of time. The extension of time was granted by the trial judge as asked for, but he had no power to then extend the time to make a case-made, and the extension was absolutely void."
In Sigman v. Pool,
"The case not having been served and settlement made within the time originally granted by the court for that purpose, we cannot review it. It is recommended that the petition in error be dismissed. For the reasons stated, the motion to dismiss the petition in error is sustained, and the cause dismissed at the cost of plaintiff in error."
In Board of Commissioners of Day County v. Hubble,
"An order extending the time to serve a case-made must be made before the expiration of the statutory time for service in the first instance, or before the extension of time allowed by the *373 court or judge has elapsed. The district court or judge has no power or authority to make an order extending the time for settling and serving a case-made after the extension of time originally allowed has elapsed, and any order of extension after the expiration of such original order is absolutely void."
In the case of Chandler v. State, ante, p. 254, 105 P. 376, Judge Owen, speaking for this court, said:
"It is true that in this case the attorneys, as is usual in such matters, stipulated and agreed that the case-made contained a true, full, and correct copy of all the proceedings in the cause. The statute requires the case-made to be authenticated by the court. The case of Hodgen v. Commissioners,
We have quoted thus fully from the authorities for the purpose of showing that the statute must be strictly complied with in perfecting an appeal. These provisions of the statute are not *374 technicalities which may be dispensed with, but they are jurisdictional. Whatever goes to the foundation of a case and affects the jurisdiction of the court must be complied with.
Under the statute and the authorities above presented, this court is without authority to entertain this appeal.
The appeal is dismissed.
DOYLE, and OWEN, JUDGES, concur.