Mitchell v State

Mitchell v State
1920 OK CR 122
190 P. 268
17 Okl.Cr. 513
Decided: 06/14/1920
Oklahoma Court of Criminal Appeals

(Syllabus.)

APPEAL AND ERROR Record Omission of Judgment Dismissal.

Appeal from District Court, Carter County; W.F. Freeman, Judge.

Jesse Mitchell was convicted of assault with a dangerous weapon, and he appeals. Appeal dismissed, and cause remanded.

Champion & George, for plaintiff in error.

S.P. Freeling, Atty. Gen., for the State.

DOYLE, P.J. The plaintiff in error, Jesse Mitchell, was convicted in the district court of Carter county upon an information charging that in said county, on or about the 12th day of January, 1918, he did then and there willfully, unlawfully, and feloniously make an assault by shooting at and against the body of one Manuel Williams, with a pistol with the unlawful and felonious intent to do great bodily harm, and his punishment was fixed at confinement in the county jail for a period of six months. To reverse the conviction a petition in error with case-made was filed in this court on August 15, 1918.

Page 514

The Attorney General has filed a motion to dismiss because there is no judgment or copy of judgment in the record.

The case-made contains a copy of the verdict, the motion for a new trial, and the order of the court overruling the same. Then appears the following recital:

"And thereupon the defendant, in open court, gave notice of appeal, and thereupon the judgment and sentence of the court was pronounced against said defendant in conformity with the verdict of the jury rendered in said cause."

This is the only reference in the record which shows the rendition of any judgment of conviction, and in itself is a mere recital of the fact that a judgment had been rendered. The case-made does not contain a journal entry of judgment or a copy thereof. By numerous decisions of this court it is held that when an appeal is taken from an alleged judgment of conviction, and the transcript of the record or case-made contains no copy of the judgment of conviction, such record or case-made presents no question to this court for its determination, and the appeal will be dismissed for want of jurisdiction. McLellan v. State, 2 Okla. Cr. 633, 103 P. 876; Loyd v. State, 12 Okla. Cr. 82, 151 P. 1190; Harjoe v. State, 14 Okla. Cr. 187, 169 P. 659.

Inasmuch as the case-made does not contain a copy of the judgment appealed from, we are of the opinion that this court is without jurisdiction to consider the appeal. The motion to dismiss the appeal is therefore sustained, and the attempted appeal herein is dismissed, and the cause remanded to the lower court.

ARMSTRONG and MATSON, JJ., concur.