189 P. 763 | Okla. Crim. App. | 1920
This is an attempted appeal from the district court of Washita county, wherein the defendant, Oliver Robinson, was convicted of the crime of receiving stolen property, and sentenced to serve a term of 18 months' imprisonment in the State Reformatory at Granite, Okla. A petition in error, with case-made attached, was filed in this court on the 13th day of August, 1918. On the 13th of October, 1919, the Attorney General filed a motion to dismiss the appeal, which reads as follows: *718
"Comes now the above-named defendant in error, by S.P. Freeling, Attorney General, and moves the court for an order to dismiss appeal in the above-entitled cause, for the reason and upon the ground that no notice of said appeal was served upon either the court clerk in the county wherein said judgment was rendered, nor upon the county attorney or prosecuting attorney in said cause."
No response to said motion has been made by counsel representing defendant. Section 5992, Revised Laws 1910, provides as follows: "An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court." Section 5997, Id., provides: "Instead of the appeal hereinbefore provided for any party desiring to appeal to the Criminal Court of Appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in `Procedure, Civil.' and the summons in error shall be served upon the Attorney General, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court." An examination of the files of this court in this case fails to disclose the service of notices of appeal upon the prosecuting attorney and clerk of the court, as provided in section 5992, supra, or either the service of summons in error upon the Attorney General, or a waiver of the same by said officer as provided in section 5997, supra. As no appeal was taken in either of the manners provided by the foregoing statutes, the motion to dismiss the appeal must be sustained, and it is hereby ordered that the appeal in this case be dismissed.