173 Ind. 192 | Ind. | 1909
The Attorney-General insists that this court has “no jurisdiction of this appeal,” which is from a final judgment in a criminal case, “because written notice of appeal was not served upon the prosecuting attorney of the
Section 2217, supra, expressly requires that written notice of appeal in a criminal ease be served upon the prosecuting attorney, but that “the parties may waive such written notice, or enter in writing their appearance to such appeal.” The record shows that the only notice of appeal was addressed to, and the service thereof acknowledged by, a person designated as “deputy prosecuting attorney.”
It was said in the case of State v. Quick (1880), 73 Ind. 147: “It is settled that the appeal must be taken in the manner prescribed by statute, and that the notice constitutes the appeal. McLaughlin v. State [1879], 66 Ind. 193; Buell v. State [1879], 69 Ind. 125; Winsett v. State [1876], 54 Ind. 437.”
In the case of McLaughlin v. State, supra, the court said at page 194: “There being no proof of notice to the clerk and the prosecuting attorney, as required, we have nothing before us to show that an appeal has been taken in the cause. * * # An appeal in a criminal cause, during term time, by order of the court trying the case, is not authorized by the statute and does not dispense with the notice provided for in section 152 [2 R. S. 1876, p. 411], supra.”
In the case of State v. Quick, supra, the statute required that notice of appeal by the State in a criminal case be served upon the clerk and also “upon the defendant, if he can be found in the county; if not, then by posting up a notice three weeks in the clerk’s office.” 2 R. S. 1876, p. 411, §152. Trial was had in Elkhart county, notice of the appeal was served upon the clerk and also the defendant, Quick, in Kosciusko county, by the sheriff of that county. This court said at page 148: “The statute does not make provision for serving notice upon the defendant outside of
So in this ease the statute expressly requires that the notice of appeal be served upon the prosecuting attorney. The law is plain, and the notice to the deputy prosecuting attorney, and the acknowledgment of service by him as such deputy prosecuting attorney, were wholly unauthorized. Appellant had no right to disregard the provision of the statute, and give the notice to a person or officer different from the one named in the statute.
Appeal dismissed.