Groves v State

Groves v State
1917 OK CR 70
163 P. 1112
13 Okl.Cr. 260
Case Number: No. A-2629
Decided: 04/09/1917
Oklahoma Court of Criminal Appeals

APPEAL AND ERROR Case-Made Dismissal.

Appeal from County Court, Cotton County; J.C. Norman, Judge.

Dan Groves was convicted of unlawfully selling whisky, and brings error. Appeal dismissed.

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

ARMSTRONG, J. Plaintiff in error, Dan Groves, was convicted in the county court of Cotton county on a charge that he did unlawfully sell to R.V. Norvill a pint of whisky, and was sentenced to be confined in the county jail for a period of 30 days, and to pay a fine of $50 and the costs. From the judgment an appeal was attempted to be taken by filing in this court a case-made.

The Attorney General has filed a motion to dismiss said appeal on the following grounds:

"That on examination of case-made and record no petition in error appears to have been filed, and as a fact none was filed in the above-entitled cause. Under the statute (section 5997, Rev. Laws 1910), and rule No. 2 of the Criminal Court of Appeals (12 Okla. Cr. xvi, 101 Pac. vii), and in the following cases: Morrison v. State, 7 Okla. Cr. 244 [123 P. 169], Wynne v. State, 8 Okla. Cr. 52, 126 P. 266, and Edwards v. State, 2 Okla. Cr. 715, 103 P. 1072 this cause has no standing in this

Page 261

court, nor has this court attained jurisdiction thereof in the absence of such petition in error. Wherefore he prays that said appeal be dismissed."

In the case of Wynne v. State, supra, it is held:

"A petition in error must be filed with the transcript of the record or case-made in order to perfect an appeal; and if a case-made or transcript of the record is filed without a petition in error, such filing will be a nullity, and such pretended appeal will be dismissed."

An examination of the record discloses that the motion to dismiss is well founded. There being no petition in error filed in this case, the court is without jurisdiction to consider the cause.