Silva v State

Silva v State
1910 OK CR 24
106 P. 556
3 Okl.Cr. 417
Case Number: No. A-81
Decided: 01/25/1910
Oklahoma Court of Criminal Appeals

APPEAL AND ERROR Notice of Appeal.

Error from Pittsburg County Court; R.W. Higgins, Judge.

John Silva was convicted of a violation of the prohibition law, and brings error. Dismissed.

J.G. Harley, for plaintiff in error.

Fred S. Caldwell, Counsel to the Governor, for the State.

PER CURIAM. John Silva was tried and convicted in the county court of Pittsburg county of a violation of the prohibition law, and was on the 11th day of November, 1908, sentenced to pay a fine of $50 and costs, and to be imprisoned for a period of 30 days in the county jail. On January 27, 1909, there was filed with the clerk of this court a petition in error, with case-made attached. On December 27, 1909, Fred S. Caldwell, counsel to the Governor, and as attorney for the state, filed a motion to dismiss the appeal, which, omitting the formal parts, is as follows:

"Special Appearance and Motion to Dismiss. Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, as counsel to the Governor, and appearing specially herein for the purposes of this motion only, represents to this honorable court as follows: More than one year has elapsed since the rendition of the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal were ever served or filed as provided and required by Sec. 6949 of the 1909 Comp. Laws of Okla. Wherefore, the state of Oklahoma says that this court is without jurisdiction to entertain said appeal and that the same should be dismissed at plaintiff in error's costs."

The question presented by the motion in this case has been fully settled. Upon the authority of the case of Arispi v.

Page 418

Territory, 2 Okla. Cr. 79, 99 P. 1099, the motion to dismiss should be sustained.