Hudson v. StateHudson v. State
- Reporters:
- , , ,
- Before:
- Per Curiam.
This is а pretended appeal by the state from a judgment for defendant quashing and setting aside a certain information filed in the county court of Payne county, Okla., in which the said defendant, M. W. Hudson, was сharged with the crime of perjury, alleged to have been com *476 mitted in a certain civil aсtion for damages in said conrt between M. W. Hudson еt al., plaintiffs, and tbe Commonwealth Cotton Oil Comрany, defendant.
Counsel for the state attemрted to take this appeal by service of a notice of appeal upon thе court clerk of Payne county and also by service of a similar notice upon counsеl for defendant. No notice was served upоn defendant himself, nor is there any proof that dеfendant could not be found within the county and that in his absence a notice was posted for three weeks in the office of the court clerk as provided by section 5992, Revised Laws 1910. There wаs no attempt to perfect this appеal by the service of any summons in error, nor is there any waiver of the issuance and service of any summons in error by counsel representing the dеfendant.
Where the appeal is taken by the service of notices as provided in seсtion 5992, the statute must be strictly complied with by the serviсe of a written notice, where the appeal is taken by the state, both upon the clerk of the court where the judgment was entered and a similar notice upon the defendant, if he сan be found within the county, and if the defendant cannot be found within the county, then it is incumbent upon the county attorney to post a written notice fоr three weeks in the office of the court сlerk. In this case the state attempted to tаke the appeal solely by serving the notices required by section 5992, and failed to either sеrve a notice on the defendant or to shоw that he could not be found in the county, and therеafter failed to post a notice in the mаnner above set out. Before this court can acquire jurisdiction of an appeal, еither the notices required by section 5992 must be served in the manner and upon the persons therein dеsignated, or else a summons in error must be issued and served, or its issuance and service waived as provided in the Code of Civil Procedure. Neither оf these methods was *477 complied with by counsel for the state. It is apparent, therefore, that this court has never acquired jurisdiction of the appeal, and the same must be dismissed. State v. Childers, 17 Okla. Cr. 627, 191 Pac. 1043.
For reasons stated, the pretended appeal is dismissed.