Aubrey v State

Aubrey v State
1927 OK CR 323
260 P. 783
38 Okl.Cr. 271
Decided: 10/29/1927
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error Time for Filing Appeal not Extended by Order Extending Time for Making and Serving Case-Made. An order made by a trial court, extending the time within which to make and serve a case-made, does not automatically extend the time within which to file the appeal. All such orders should cover both the time to make and serve case-made and the time within which to file the appeal, as provided in sections 2808 and 2824, Comp. St. 1921.

2. Appeal and Error Notice of Appeal Statutes. Section 782, Comp. St. 1921 (chapter 219, Session Laws 1917), did not repeal section 2809, Comp. St. 1921, relating to the manner and method in taking an appeal in criminal cases and giving notice thereof. Said section 782, supra, relates solely to appeals in civil causes and has no application to criminal cases.

Appeal from County Court, Creek County; Thos. S. Harris, Judge.

C.B. Aubrey was convicted of unlawfully operating a still, and he appeals. Appeal dismissed.

Lloyd J. Seay and John R. Miller, for plaintiff in error.

Page 272

Edwin Dabney, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Creek county on a charge of unlawfully operating a still and was sentenced to pay a fine of $250 and to serve 60 days in the county jail. The judgment was entered on November 16, 1925. Defendant was allowed 40 days to make and serve case-made, but no extension of time within which to file the petition in error was made beyond the 60-day period allowed by section 2808, Comp. St. 1821. Thereafter on December 22, 30 days' extension from that date was allowed in which to make and serve case-made; 10 days to suggest amendments to be settled and signed on 5 days' notice: No order was made extending the time within which the petition in error and case-made should be filed in this court. Again on January 21, 1926, an extension of 15 days to make and serve case-made was entered, but no order was made extending the time in which to file the appeal in this court. The appeal was filed February 19, 1926, more than 60 days after the rendition of judgment. This court did not acquire jurisdiction. Holly v. State, 16 Okla. Cr. 164, 181 P. 518, and cases therein cited. Further, the record does not show that any notice of appeal was ever given as required by section 2809, Comp. St. 1921. When the motion for a new trial was overruled, defendant gave notice (presumably in open court) of his intention to appeal and requested that notice be spread of record. This was evidently an attempt to comply with the provisions of chapter 219, Session Laws 1917 (section 782, Comp. St. 1921). This court has frequently held that this provision of the law applies only in civil cases and has no application to appeals in criminal cases. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.

Page 273

For the reasons assigned, the appeal is dismissed.