Day v State

Day v State
1931 OK CR 443
5 P.2d 402
52 Okl.Cr. 181
Decided: 10/02/1931
Oklahoma Court of Criminal Appeals

Appeal from County Court, Caddo County; R.L. Lawrence, Judge.

Page 182

Bill Day was convicted of possessing whisky, and he appeals. Appeal dismissed.

Walter Morris, for plaintiff in error.

J. Berry King, Atty. Gen., for the State.

DAVENPORT, P.J. The plaintiff in error, hereinafter referred to as the defendant, was convicted of having in his possession two gallons and one pint of whisky, and was sentenced to pay a fine of $100 and be imprisoned in the county jail for 60 days; and appeals.

The petition in error with case-made was not filed in this court until June 20, 1931, eighty-one days after the rendition of the judgment in the trial court. This being a misdemeanor case, the statute requires that the case be filed in this court in 60 days after the rendition of the judgment, unless a further extension of time is granted by the trial court. An examination of the record shows that the defendant was sentenced on the 30th day of March, 1931, and was given 40 days to make and serve a case-made. On the 25th day of April, an order was entered by the court as follows:

"It having been made to appear to the court, and for good cause a case-made cannot be made and prepared within the date heretofore allowed, and for good cause shown it is hereby ordered, considered and adjudged, that the time heretofore given the defendant in which to make and serve a case-made is hereby extended for 40 days from this date, and ten days additional thereto be allowed the state to suggest amendments to the case-made so served.

"It is further ordered that the defendants above named have three days in addition to the above time allowed him in which to file his appeal in the Criminal Court of Appeals of the state of Oklahoma"

Page 183

making the total time for the defendant to file his case-made in this court from April 25, 1931, of 53 days. Section 2808, C. O. S. 1921, provides:

"In misdemeanor cases the appeal must be taken within 60 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 60 days. In felony cases the appeal must be taken within six months after the judgment is rendered, and a transcript in both felony and misdemeanor cases must be filed as hereinafter directed." Jones v. State, 50 Okla. Cr. 437, 298 P. 1053; Swalley v. State, 52 Okla. Cr. ___, 2 P.2d 281, and Allen v. State, 52 Okla. Cr. ___, 5 P.2d 183.

In this case it is apparent that the petition in error with case-made attached was not lodged in this court within the time allowed by the court; therefore this court is without jurisdiction.