Gordon v State

Gordon v State
1915 OK CR 210
152 P. 142
12 Okl.Cr. 103
Case Number: No. A-2276
Decided: 10/23/1915
Oklahoma Court of Criminal Appeals

APPEAL Dismissal.

Appeal from District Court, LeFlore County; W.H. Brown, Judge.

John Gordon was convicted of murder and appeals. Appeal dismissed.

Tom W. Neal, for plaintiff in error.

Chas. West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.

DOYLE, P.J. Under an indictment preferred by the grand jury of LeFlore county, wherein the plaintiff in error, John Gordon and Sam Gordon were jointly charged with the murder of one Lewis Johnson, in said county on or about the 22nd day of October, 1912, the plaintiff in error was upon his separate trial convicted of murder and his punishment fixed at imprisonment in the penitentiary for life. Judgment and sentence in pursuance of the verdict was rendered on the 26th day of November, 1913. From the judgment an appeal was attempted to be taken by filing in this court on Wednesday, May 27, 1914, a petition in error with case-made.

The attorney general has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered.

Page 104

Section 5991 Rev. Laws provides:

"In felony cases the appeal must be taken within six months after the judgment is rendered."

Section 5341 Rev. Laws provides:

"The time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday, it shall be excluded."

Section 2942 Rev. Laws provides:

"The word `year' means a calendar year, and `month,' a calendar month. Fractions of a year are to be computed by the number of months, thus: half a year is six months. Fractions of a day are to be disregarded in computations which include more than one day, and involve no question of priority."

In the case of Barks v. The State, 11th Okla. Cr. 466, 147 P. 1055, it is said:

"An appeal from a judgment of conviction in a felony case is taken by filing in this court a petition in error with case-made, or transcript of the record, attached, together with proof of service of the notices of appeal as required by statute (Section 5992, Rev. Laws). When this is not done within the time allowed by statute (Section 5991, Rev. Laws), this court does not acquire jurisdiction of the appeal."

In this case it appears from the record that the petition in error and case-made was not filed with the clerk of this court within six months after the judgment was rendered. It was one day too late. It follows that the motion to dismiss the appeal should be sustained.

We may remark, however, that an examination of the record discloses that the sole assignment of error relied upon for reversal is without merit.

It also appears that the homicide charged was one of four or five the immediate results of a sanguinary melee, occurring at a negro festival held in a church at a place called Cedars.