Forge v United States

Forge v United States
1910 OK CR 44
106 P. 1133
3 Okl.Cr. 466
Case Number: No. A-50
Decided: 02/03/1910
Oklahoma Court of Criminal Appeals

Appeal from District Court, Ottawa County; L.M. Poe, Judge.

S.S. Forge was convicted of murder, and appeals. Dismissed.

M.M. Edminson, for appellant.

Chas. L. Moore, Asst. Atty. Gen., for the State.

PER CURIAM. The Attorney General filed the following motion to dismiss this appeal:

"Comes now the Attorney General, for and upon behalf of the state of Oklahoma, and moves the court to dismiss the pretended appeal herein and to strike the cause from its docket, for the reason that this court has never acquired the jurisdiction to entertain, hear, and determine the questions sought to be raised and have reviewed herein, in that the final judgment appealed from was rendered on May 9, 1908, the record was not filed in this court until December 9, 1908, and the appeal has not up to this time been perfected by the service of notice of appeal as required by section 5610 of Wilson's Oklahoma Statutes, 1903, in force at the time of said trial."

The record before us does not show that notices of appeal were ever served upon the county attorney and the clerk of the district court of Ottawa county, as is required by law. This is jurisdictional, and as the time for serving such notices has long since expired we are forced to sustain the motion to dismiss.

Even if the notices of appeal had been properly served, we could not have considered what purports to be the case-made, because it is not sealed and settled by the judge who tried the case, as the law directs. The alleged case-made was not signed by the judge and attested by the clerk of the district court. There is nothing about it to indicate that the district judge ever saw it. Instead of presenting the case-made to the trial judge, we find the following certificate appended to it:

Page 467

"State of Oklahoma, County of Ottawa ss.: I, Jesse J. Worten, official court reporter within and for the Twenty-First judicial district of the state of Oklahoma, do hereby certify that I was the stenographer who took down in shorthand all of the proceedings had in the trial of the case wherein the state of Oklahoma was plaintiff and S.S. Forge was defendant, and I further certify that the foregoing bill of evidence and exceptions is a full and complete record of all the evidence introduced by the state, both oral and written, and containing all the rulings of the court, in the trial of said cause. This record, however, containing only the evidence introduced by the state, and no part of that introduced by the defendant. In witness whereof, I have hereunto set my hand, on this the 5th day of November, A.D. 1908. Jesse J. Worten, Official Court Reporter."

There is no law authorizing this to be done, and it is altogether insufficient.

There are irregularities in the transcript of the record; but, as this case will have to be dismissed for want of service of notice of appeal, it would be a waste of time to discuss them.