Austin v State

Austin v State
1934 OK CR 11
28 P.2d 1113
55 Okl.Cr. 278
Decided: 01/12/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error - Necessity for Serving Notice of Appeal. An appeal, when taken by the defendant, is perfected by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment, and by the service of a similar notice upon the prosecuting attorney. These notices are the prerequisite steps to conferring upon the appellate court the jurisdiction to hear and determine the appeal.

2. Same - Nullity of Case-Made not Served Within Legal Time. A case-made for appeal, not served within the time originally allowed by the trial court for serving case-made, nor within the time fixed by any valid extension of time, is a nullity.

Appeal from County Court, Blaine County; H.D. Winkler, Judge.

Mose Austin was convicted of illegal possession of intoxicating liquor, and he appeals. Appeal dismissed.

W.F. Duncan, for plaintiff in error.

J. Berry King, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

EDWARDS, P.J. Plaintiff in error was convicted in the county court of Blaine county of having unlawful possession of whisky and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

This appeal must be dismissed for two reasons:

First. The notice of appeal was not served on the court clerk as required by section 3193, Okla. Stat. 1931, but was served only on the county attorney. The failure to serve the court clerk is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 P. 719.

Page 279

Second. The case-made was not served on the county attorney within the time fixed by law nor within any legal extension of time.

Section 3192, Okla. Stat. 1931, provides that an appeal from a misdemeanor may be taken in 60 days, or upon good cause shown the trial judge may extend the time not to exceed 60 days additional. In the instant case judgment was entered on the 29th day of May and no order of extension was made till the 29th day of July, 61 days from the date of judgment. Time is computed by excluding the first day and including the last. Section 22, Okla. Stat. 1931; Welch v. State, 38 Okla. Cr. 300, 260 P. 787.