114 P. 356 | Okla. Crim. App. | 1911
The judgment against the defendant was pronounced in this case on the 21st day of June, 1909, at which time appellant was allowed 90 days in which to make and serve a case-made. Thereafter, on the 20th day of September, 1909, the court granted 60 days additional time within which to make and serve a case-made. The case-made was not served on the county attorney until the 19th day of November, 1909. July and August each have 31 days. The 90 days originally granted to make and serve a case-made expired on the *277 19th day of September, 1909. The court was without power, on the 20th day of September, 1909, to grant an extension of time within which the case-made might be made and served, and such order was void. We have no power to consider a case-made unless it is served within the time prescribed by the order of the court, unless such time is extended by the court before it has expired under the original order. That which has expired cannot be extended. The court cannot give life to that which is dead. This is jurisdictional and has always been the law in Oklahoma.
In the case of 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 40 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 an 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. Poole,
"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 is 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 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."
See, also, Bradford v. State,
Under these authorities we are without power or right to consider anything in the case-made now before us, but must strike such case-made from the record. We must therefore consider this appeal upon the transcript of the record, which is properly certified to as such by the clerk of the district court. We do not find the instructions of the court in this transcript, but we find an affidavit from one of the attorneys for appellant, and also a certificate from the clerk of the district court of Pontotoc county, to the effect that the instructions of the court to the jury have been lost and after a diligent search the same cannot be found. Counsel for appellant contend that as they are thereby deprived of having the instructions given by the court reviewed upon appeal, a new trial should be granted the appellant. In the case of Tegeler v. State,
In the case of Devore v. Territory of Oklahoma,
"The plaintiff in error complains that he has been deprived of his right of review of the instructions of the court by the fact that they are not to be found in the office of the clerk of the court below, and that he is therefore entitled to a reversal and a trial de novo. The court instructed the jury, and upon the evidence under the instructions the jury found the defendant guilty. The presumptions of law are, in the absence of error, which must be made to appear by the plaintiff in error, that the proceedings of the district court are regular, and that the instructions to the jury gave the law correctly. But it is the privilege of the defendant to bring the case here by appeal, and if it is made to appear to this court that error has been committed, the case will be reversed, if the error is material. The defendant is therefore interested in the preservation of the record. If it is not made to appear that error has been committed, the judgment of the district court will stand. If, after judgment against a defendant in a criminal case, exceptions reserved and appealed to this court, the defendant should be relieved and the judgment reversed, because the instructions given below were lost from the case, great difficulty might be experienced in preserving the instructions until the case could be brought here."
Counsel for appellant in their brief did not complain of any errors in the record, except the loss of the instructions.
For the reasons above given, we cannot grant appellant a new trial upon this ground. The judgment of the lower court is therefore affirmed.
ARMSTRONG and DOYLE, JUDGES, concur. *282