Clemmons v State

Clemmons v State
1911 OK CR 553
115 P. 610
35 Okl.Cr. 384
Case Number: No. A_____.
Decided: 05/23/1911
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error Necessity for Petition in Error. When an appeal is taken to this court from any criminal action determined in any trial court of record in this state, the transcript or case-made must be accompanied by a petition in error, pointing out the specific assignments upon which the appellant relies for a reversal of the judgment.

2. Same Necessity for Notice of Appeal. It is necessary for notice of appeal to be served upon the clerk of the court trying the cause, and the county attorney of the county within which

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the same was tried, as provided by section 6949, Snyder's Statutes. Unless this is done, this court cannot exercise jurisdiction to review any attempted appeal, and can make no order, except to dismiss the same, and direct the trial court to enforce the judgment and sentence.

Appeal from District Court, Muskogee County; John H. King, Judge.

Goldie Clemmons was convicted on a charge of assault with intent to kill, and appeals. Appeal dismissed.

Percival Adams, for plaintiff in error.

Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

ARMSTRONG, J. The plaintiff in error was tried in the district court of Muskogee county on a charge with assault with intent to kill. A verdict of guilty was returned by the jury on the 13th day of November, 1909, assessing her punishment at a year in the penitentiary. Motion for a new trial was filed and overruled, and on the 16th day of November thereafter, the court sentenced the plaintiff in error to imprisonment in the state penitentiary for one year.

The plaintiff in error attempted to perfect an appeal in this court on the 2nd day of February, 1910, by filing petition in error and case-made. On the 12th day of September, 1910, the Attorney General filed a motion to affirm for want of prosecution under rule 4. On the 17th day of January, 1911, brief was filed on behalf of the plaintiff in error. On the 12th day of April, 1911, a motion to dismiss the appeal was filed by the Assistant Attorney General, which is as follows:

"Comes now Charles West, Attorney General, and appearing specially and for the purpose of this motion only, moves the court to dismiss the pretended appeal herein, for the reason that no petition in error is attached to or accompanies the case-made, nor has any petition in error ever been filed in this case, and the time within which this appeal could have been perfected has long since expired. Section 6951, Comp. Laws of Oklahoma 1909 (Snyder); Edwards v. State, 2 Okla. Cr. 715, 103 P. 1072. Second.

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Because no notices of appeal were ever served upon the clerk of the district court or county attorney, as required by section 6949, Comp. Laws 1909 (Snyder). Wherefore, the Attorney General says that this court is without jurisdiction to consider this case, and the appeal should therefore be dismissed. Chas. West, Attorney General. Smith C. Matson, Assistant Attorney General."

The motion is well taken and is sustained. This court is without jurisdiction to review the cause on appeal, and the same is hereby dismissed, with directions to the district court of Muskogee county to enforce the judgment and sentence.