Nash v State

Nash v State
1917 OK CR 53
163 P. 330
13 Okl.Cr. 211
Case Number: No. A-2185
Decided: 03/10/1917
Oklahoma Court of Criminal Appeals

1. APPEAL AND ERROR Discontinuance Right of Accused.

2. SAME Dismissal.

Error from District Court, Kiowa County; James R. Tolbert, Judge.

Page 212

Frank Nash was convicted of murder, and he brings error. Dismissed.

Zink & Cline, George D. Keys, and Hays & Hughes, for plaintiff in error.

R. McMillan, Asst. Atty. Gen., for the State.

ARMSTRONG, J. The plaintiff in error, Frank Nash, was convicted at the August, 1913, term of the district court of Kiowa county on a charge of murder, and his punishment fixed at imprisonment for life in the state penitentiary. The appeal was duly filed in this court, and the cause briefed upon its merits and argued orally to the court by counsel.

Subsequent to the submission of the cause upon the briefs and argument, to wit, on the 19th day of February, 1917, the plaintiff in error filed his motion to dismiss the appeal, which is as follows, to wit:

"IN THE CRIMINAL COURT OF APPEALS OF THE STATE OF OKLAHOMA.

"FRANK NASH, PLAINTIFF IN ERROR, v. STATE OF OKLAHOMA,

DEFENDANT IN ERROR.

"MOTION TO DISMISS.

"Comes now Frank Nash, plaintiff in error, and states to the court that at the August, 1913, term of the district court of Kiowa county, Oklahoma, he was tried and convicted of the crime of murder; that the judgment and sentence of the court was that he should be confined in the state penitentiary at McAlester, Oklahoma, for the period of his natural life; from which judgment and sentence, plaintiff in error appealed to the Criminal Court of Appeals of Oklahoma, and said appeal is now pending on the docket of said court.

"Plaintiff in error further states to the court that he does not wish to prosecute said appeal, and prays

Page 213

the court that same may be dismissed, and the judgment and sentence of the district court of Kiowa county against him be, by the court, ordered executed.

"[Signed] FRANK NASH, Plaintiff in Error.

"WC. KILGORE, Witness to Signature."

The right of appeal is granted by law, and is a right that all persons convicted of crime in the courts of the state may exercise. In other words, it is a privilege granted by the law to those against whom judgments of confinement or punishment by fine are rendered which they may exercise at their option. When an appeal is once lodged in this court and the cause submitted, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. 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.

It is therefore the order of the court that the motion be sustained, and the appeal accordingly dismissed.