113 P. 238 | Okla. Crim. App. | 1911
Plaintiffs in error in each of the above entitled and numbered causes were convicted in the county court of McIntosh county for violations of the prohibition law. Appeals were attempted to be taken by filing in each of said causes a petition in error with case-made attached in this court on October 11, 1909. Briefs on behalf of plaintiffs in error were filed in due time. Said causes were assigned for final submission on Monday, January 16, 1911. On behalf of the state the Attorney General, appearing specially for this purpose alone, filed motions to dismiss the appeal in each cause, for the reason that: "No notices of appeal have ever been served and filed as provided and required by section 6949, Snyder's Comp. St. 1909." An examination of the record in each cause shows that the only notice of appeal given is by the following recital in each case-made: "Now comes the defendant herein by his attorney, C.H. Tully, and gives oral notice of his intention to appeal herein." The case-mades show no service of notices of appeal upon either the county attorney, county judge, or clerk of the county court.
The decisions upon this question are many, and this court has uniformly held that, in order to give this court jurisdiction, the notices prescribed by the statute must be served upon the clerk of the court and prosecuting attorney; and proof of service of *121 such notices must be filed with the clerk of this court within the time in which an appeal may be taken.
The language of the court, speaking through Judge Richardson in the case of Ensley v. State,
"Then all that is left for plaintiff in error to stand on is the fact that he gave oral notice of appeal to the proper officers in open court; and here we are brought face to face with the real question in the case: Is oral notice sufficient? We think not. It may be laid down as a general proposition, first, that, wherever the statute requires notice to be served in a legal proceeding, a written notice, capable of service, and of proof and return, and capable of being filed, is intended; and especially is that true where service of such notice and proof thereof are matters jurisdictional, as they are in this character of proceeding. Jenkins v. Wild, 14 Wend. (N.Y.) 539; Minard v.Douglas County,
"In the next place, in our opinion, a close and analytical examination of the section in question shows conclusively that only written notice is contemplated. The statute provides that an appeal is taken by the service of a notice. The word `service' itself, as used with reference to summonses, writs, subpœnas, notices, and other legal processes, means the reading of the same to the person to be served, or the delivery to such person of the original or a copy thereof. We are aware that there are times and occasions when the word is otherwise used; but, generally stated, in legal proceedings, when the expression `service of a notice' is used without qualification, it means a personal service of a written notice.
"In the next place, it will be observed that the statute provides that the appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered. It does not require service upon the judge or upon the court, but only upon the clerk. There being no mandatory provision that the county court shall have a clerk, service either upon the county judge or his clerk, if he has one, is held good; but under this statute the service of notice upon the district judge or the district court in open court would not be good. The service in the district court must be upon the clerk of the court. InBaberick v. Magner,
"In the next place, no provision is made in our statute for the issuance or service of citation or summons in error in a criminal case. In our opinion, notice of appeal is analogous to such summons in error, and is designed to take the place thereof. It was so held in Pacific Coast Ry. Co. v. Superior Court,
"It is stated by plaintiff in error that in no decision construing this statute in this jurisdiction has it ever been said that the notice must be in writing; but we find that inBailey v. Territory,
The motions to dismiss are sustained. Said purported appeals are dismissed, and the cases are remanded to the county court of McIntosh county, with directions to enforce the judgments and sentences rendered therein.
FURMAN, PRESIDING JUDGE, and ARMSTRONG, JUDGE, concur.