Hancock v State

Hancock v State
1935 OK CR 105
48 P.2d 348
57 Okl.Cr. 329
Decided: 08/05/1935
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error Right of Appeal and Right to Dismiss Appeal. An appeal to this court may be taken by a defendant as a constitutional right from any judgment rendered against him in a court of record. The right being a personal one to plaintiff in error, he may waive the same and have the appeal dismissed on his own motion.

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2. Same Effect of Motion to Dismiss Appeal. Where a defendant, after appealing from a judgment of conviction, filed a formal dismissal of his appeal, the judgment of the trial court is left in full force and effect.

Appeal from District Court, Caddo County; Will Linn, Judge.

Calvin Hancock was convicted of burglary in the second degree, and he appeals. Appeal dismissed and cause remanded with directions.

Morris & Wilhite, for plaintiff in error.

Amos Stovall, Co. Atty., for the State.

DOYLE, J. Plaintiff in error, Calvin Hancock, was tried and convicted in the district court of Caddo county upon an information charging that on April 9, 1934, he committed the crime of second-degree burglary, and in accordance with the verdict of the jury he was on September 24, 1934, by the judgment of the court sentenced to imprisonment for a term of two years. An appeal was duly filed in this court on March 25, 1935. On July 18, 1935, he filed his motion to dismiss the appeal, which, omitting title, is as follows:

"Now comes the plaintiff in error by his attorneys, Morris & Wilhite, and moves the court to dismiss the appeal in the above entitled cause for the following reasons, to wit:

"That the plaintiff in error has abandoned said appeal, has surrendered himself to the authorities at the state reformatory at Granite, Okla., and is now serving his sentence."

An appeal may be taken to this court by a defendant as a matter of constitutional right from any judgment rendered against him in a court of record. It is a privilege

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granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal has been taken, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Huber v. State, 13 Okla. Cr. 209, 163 Pac. 329.

In the case at bar, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of the plaintiff in error.