Rice v State

Rice v State
1911 OK CR 331
115 P. 1133
6 Okl.Cr. 596
Case Number: No. A-570
Decided: 05/23/1911
Oklahoma Court of Criminal Appeals

Appeal from District Court, Texas County; R.H. Loofbourrow, Judge.

R.B. Rice appeals from an order of the trial court sustaining a demurrer to plea in abatement. Appeal dismissed.

J.P. McLaughlin and S.S. Macy, for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for defendant in error.

PER CURIAM. This is an attempt by the plaintiff in error to appeal from an order of the trial court sustaining a demurrer to a plea in abatement. No final judgment was entered in the case. An appeal does not lie in this court except from a final judgment of a trial court of record. The question attempted to be raised here can and would properly be raised by appeal after a judgment of conviction is had.

The Attorney General has filed a motion to dismiss the appeal, as follows:

"Comes now Charles West, Attorney General, and appearing especially and for the purposes of this motion only, moves the court to dismiss the pretended appeal herein for the following reasons: Because no final judgment has ever been rendered against this defendant from which an appeal may be taken, this being an attempted appeal by way of bill of exceptions from the order of the court sustaining a demurrer to a plea in abatement, which was an intermediate order of the trial court, and not a judgment that can be appealed from. Wherefore, the Attorney General says that this appeal should be dismissed with instructions to the trial court to proceed with the trial of this case.

"CHAS. WEST, Attorney General.
"SMITH C. MATSON, Assistant Attorney General."