Oklahoma v Foster

Oklahoma v Foster
1934 OK CR 60
32 P.2d 750
55 Okl.Cr. 450
Decided: 05/11/1934
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error - Appeal by State - Notice of Appeal.

Appeal from District Court, Tulsa County; Harry L.S. Halley, Judge.

O.C. Foster was acquitted in the district court of Tulsa county of a charge of murder, and the State appeals. Appeal dismissed.

J.M. Springer, for the State.

W.L. Coffey, for defendant in error.

EDWARDS, P.J. This is an attempted appeal by the state on a reserved question of law in a case tried in the district court of Tulsa county, in which defendant was charged with the murder of one Payne and was acquitted. Section 3191, Okla. St. 1931, permits an appeal by the state on a reserved question of law. Section 3193, Okla. St. 1931, provides the manner in which an appeal may be taken either by a defendant or the state, and is:

"An appeal is taken 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. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice

Page 451

three weeks in the office of the clerk of the district court."

The state has attempted to appeal under the provisions of this section, but the notice required was not served on defendant, nor posted in the office of the court clerk. The only notice in the record was served on the attorney of record for defendant. When the state attempts to appeal in a criminal case, it must strictly pursue the provisions of the statute; that is, it must serve notice on defendant personally, or if he cannot be found in the county, must post such notice in the office of the court clerk. This was specifically held in State v. Simmons, 43 Okla. Cr. 405, 279 P. 524. The court there followed State v. Childers, 17 Okla. Cr. 627, 191 P. 1043. See, also, State v. Hudson, 21 Okla. Cr. 475, 204 P. 133; State v. Boyd, 22 Okla. Cr. 451, 211 P. 1119.