120 P. 665 | Okla. Crim. App. | 1912
On the 24th day of April, 1911, sentence was pronounced against appellant. Repeated extensions of time to prepare and serve a case-made and to perfect his appeal to this court were granted by the trial court. The record was filed in this court on the 18th day of August, 1911. What purports to be the case-made is not certified to and signed by the trial judge, as the law requires.
Counsel attempt to excuse the failure to present this case-made to the county judge for approval, upon the ground that the county judge was absent from the county, and therefore the case-made could not be presented to him for approval within the time required by law, and assert that there was no one within the county or state with power to extend the time within which the case-made might be settled and signed. Counsel insist that upon the authority of Tegeler v. State,
While it is true that a defendant has a constitutional right to appeal, yet it is also true that the manner of taking this appeal is a proper subject of legislative regulation; and, where the rules prescribed by the Legislature have not been complied with this court does not acquire jurisdiction of the appeal. The Constitution gives the right to each defendant to have compulsory process for witnesses in his behalf, and if a defendant, in proper time and manner, seeks to secure this compulsory process, and it appears that the testimony of such witnesses is material, and the court deprives a defendant of his right, a new trial will be granted; but if a defendant waits until his case is called for trial, and has exercised *584 no diligence to secure process for such witnesses, he will be held to have waived this constitutional right, and it will avail him nothing on appeal. So, in matters of this kind, a defendant has the right, by perfecting his appeal to this court, by a proper showing, and before the expiration of the time for preparing his case-made, to secure from this court an order extending the time within which such case-made may be prepared. But if attorneys allow the time provided by law for perfecting a case-made to expire, without placing themselves in a position where this court can extend such time, they cannot be heard to say that their clients have been deprived of their constitutional rights through no fault or carelessness on their part. To hold otherwise would be to allow attorneys to remain idle and take advantage of matters which they could have avoided by the exercise of diligence on their part. It would be to attach more importance to the flyspecks of the law than to the principles of the law. Law is not enacted for the purpose of protecting criminals, but its purpose is to protect the innocent. Hatred and revenge enter largely into punishment among barbarians and savages; but among civilized people punishment is only inflicted for the purpose of protecting society, and not for revenge. In other words, the law never seeks a victim, but only seeks to reform the offender and set an example which will deter others from committing similar offenses, and by both of these means it seeks to protect society.
Before a defendant is tried and convicted, the law presumes that he is innocent, but after he is tried and convicted in a court of record the presumption of innocence is wiped out, and, on the contrary, the law presumes he is guilty, and has been fairly tried and legally convicted; and the burden is upon him to exercise due diligence to show that he has been convicted illegally. Otherwise the conviction should stand.
Lawyers of Oklahoma must learn that, before they can expect this court to hold that a conviction is illegal, they must exercise due diligence, and present the appeals properly to this court; and no case will be reversed upon the ground that the defendant has been deprived of a right of appeal, unless it *585 appears that the utmost diligence was exercised on the part of his counsel, and that he has been deprived of his right of appeal wholly without fault on their part. For these reasons, the case-made will be stricken from the record, and cannot be considered for any purpose whatever.
The transcript of the record fails to show the commission of any error in the trial court. In fact, counsel for appellant in the brief filed does not contend that error was committed upon the trial of this cause, but relies solely upon the failure to obtain a case-made. The judgment of the lower court is therefore affirmed.
ARMSTRONG and DOYLE, JJ., concur.