Billus v State

Billus v State
1912 OK CR 118
121 P. 790
7 Okl.Cr. 37
Case Number: No. A-946
Decided: 03/08/1912
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. APPEAL Record Case-Made.

2. APPEAL Record Transcript.

Appeal from Superior Court, Pottawatomie County; George C. Abernathy, Judge.

Walter Billus was convicted of assault with intent to murder, and sentenced to confinement in the penitentiary for one year, and appeals. Dismissed.

S.P. Freeling

Smith C. Matson

FURMAN, P.J. The record in this case fails to show that the case-made was ever served upon the county attorney. In the case of Cohn v. State, 4 Okla. Cr. 492, 113 P. 219, this court, speaking by Judge Richardson, said:

"No case-made will be considered by this court, unless it is shown positively and affirmatively that it was served upon the county attorney, and that it was so served within the time granted by the trial court for that purpose."

See, also, Box v. State, 4 Okla. Cr. 371, 111 P. 655; Wilson v. State, 4 Okla. Cr. 517, 111 P. 659. This question has

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been so often decided, both by this court and the Supreme Court of Oklahoma Territory, that further citation of authorities is unnecessary. The signature of the judge to the case-made is not attested by the clerk of the court under the seal of the court as the law directs. We must therefore strike the case-made from the record.

There is not in the record any certificate of the clerk of the superior court to the transcript of the record. We therefore cannot consider this appeal as upon the transcript of the record. See Abel v. Blair, 3 Okla. 402, 41 P. 342; Wade et al. v. Michell, 14 Okla. 170, 79 P. 95; Perky v. State, 4 Okla. Cr. 239, 111 P. 663; Dobbs v. State, 5 Okla. Cr. 475, 114 P. 358, 115 P. 370. We cannot consider the record before us as a case-made, because it fails to show it was ever served upon the county attorney, and because the signature of the judge to the case-made is not attested by the clerk of the court under the seal of the court as the law directs. See Blitz v. Brown, 7 Wall. 693, 19 L. Ed. 280. We cannot consider the transcript of the record, because it is not certified to by the clerk of the superior court.