Simmons v State

Simmons v State
1910 OK CR 124
109 P. 79
4 Okl.Cr. 10
Case Number: No. A-323
Decided: 05/25/1910
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

APPEAL Misdemeanor Time of Taking.

Page 11

the time within which the appeal may be taken, else the appeal must be dismissed.

Appeal from Okfuskee County Court; T.T. Doyle, Judge.

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

C.T. Huddleston, for plaintiff in error.

Fred S. Caldwell, for the State.

PER CURIAM. The state has filed a motion to dismiss this appeal for the reason that this court has no jurisdiction thereof, in that the judgment from which the appeal was prosecuted was rendered on the 19th day of July 1909, and the petition in error herein was not filed in this court until the 27th day of September, 1909. To this motion no response has been filed.

Section 6948 of Snyder's Compiled Laws of Oklahoma, which section became an effective law on June 11, 1909, provides as follows:

"In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty days."

This was a conviction for a misdemeanor. The record shows that the judgment from which this appeal purports to have been taken was rendered against plaintiff in error on the 19th day of July, 1909. The record shows no order of the trial court or judge extending the time in which the appeal might be taken; and under the statute above quoted the time within which plaintiff in error could prosecute his appeal to this court expired on and with the 17th day of September, 1909. The case-made was not settled and signed until the 25th day of September, 1909, and was not filed in this court until the 27th day of September. Where the appeal is not perfected within 60 days after the rendition of judgment, the record must show a proper order made by the trial court or judge before the expiration of the first 60

Page 12

days extending the time within which the appeal may be taken, else the appeal must be dismissed. The motion to dismiss is therefore well taken.