Rogers v State

Rogers v State
1932 OK CR 60
8 P.2d 1111
53 Okl.Cr. 173
Decided: 03/04/1932
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Appeal in Felony Case Required to Be Filed Within Six Months.

Page 174

and he appeals. Appeal dismissed and cause remanded, with directions.

Chas. H. Ruth, for plaintiff in error.

The Attorney General, for the State.

CHAPPELL, J. The plaintiff in error was convicted in the district court of Oklahoma county on a charge of larceny of an automobile, and his punishment fixed by the jury at imprisonment in the state penitentiary for a period of 11 years.

The judgment in this case was rendered on the 5th day of May, 1931. The petition in error was filed on the 11th day of December, 1931, same being more than six months after the date the judgment was rendered.

Section 2808, C. O. S. 1921, in part reads:

"* * * In felony cases the appeal must be taken within six months after the judgment is rendered. * * *"

The statute fixes the time for appeal. This court is without power to extend the terms of the statute. When, as in this case, the appeal is filed after the expiration of the six months' period, this court does not acquire jurisdiction, but must dismiss the appeal. Peyton v. State, 41 Okla. Cr. 186, 270 P. 860.

In the case at bar, the appeal was filed within six months after the trial court had overruled defendant's second motion for a new trial on account of newly discovered evidence. The six months began to run at the date the judgment and sentence was pronounced, and not at the time the motion for a new trial was overruled. Howey v. State, 9 Okla. Cr. 453, 132 P. 499; Clark v. State, 18 Okla. Cr. 145, 193 P. 1008, 1009; George v. State, 21 Okla. Cr. 240, 205 P. 942; Heath v. State,

Page 175

22 Okla. Cr. 122, 210 P. 560; Criner v. State, 37 Okla. Cr. 313, 258 P. 359; Easterwood v. State, 38 Okla. Cr. 72, 259 P. 181.