Cadwell v State

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Cadwell v State
1935 OK CR 5
40 P.2d 685
56 Okl.Cr. 369
Decided: 01/25/1935
Oklahoma Court of Criminal Appeals


Appeal and Error - Necessity for Notice of Appeal or Service of Summons in Error on Attorney General.

Appeal from District Court, Ellis County; F. Hiner Dale, Judge.

Ray Cadwell was convicted of the crime of manslaughter in the first degree, and he appeals. Appeal dismissed.

C.B. Leedy, for plaintiff in error.

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

DAVENPORT, P.J. The plaintiff in error was convicted in the district court of Ellis county of manslaughter

Page 370

in the first degree and sentenced to serve four years in the penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no written notice was served on the court clerk or county attorney, and no summons in error was issued and served, and the Attorney General has not waived the issuance and service of summons in error. The failure to serve a written notice on the court clerk and county attorney is jurisdictional.

Where no notice of intention to appeal is served on the county attorney and court clerk, and where no summons is issued and served, and where the Attorney General has not waived the issuance and service of summons, this court acquired no jurisdiction of the appeal. Brown v. State, 55 Okla. Cr. 11, 23 P.2d 719; Austin v. State, 55 Okla. Cr. 278, 28 P.2d 1113.

It appears from the record that the contention of the Attorney General is well taken, and the motion to dismiss the appeal should be sustained.