Fay v State

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Fay v State
1937 OK CR 144
71 P.2d 771
62 Okl.Cr. 358
Decided: 09/10/1937
Oklahoma Court of Criminal Appeals


Appeal and Error-Dismissal Where no Notices of Appeal Served nor Summons in Error Served on Attorney General.

Page 359

Appeal from District Court, Okmulgee County; S. L. O'Bannon, Judge.

John Fay was convicted of assault with intent to kill and murder, and he appealS. Appeal dismissed.

Kenneth B. Kienzle, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for the State.

DAVENPORT, P. J. This is an attempted appeal from the district court of Okmulgee county, Okla., rendered on verdict and judgment finding the defendant, John Fay, guilty of assault with intent to kill and murder, and fixing his punishment at six months in the state penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no notices of appeal were served on the county attorney or court clerk, and no summons in error was issued and served upon the Attorney General or the same waived.

An examination of the record shows that the motion to dismiss is well taken. In the case of Kirk v. State, 21 Okla. Cr. 34, 204 Pac. 465, this court held that where appellant within the time for taking an appeal served no notices of appeal upon the court clerk or county attorney as provided in section 5992, Rev. Laws 1910 (now section 3193, O. S. 1931 [22 Okla. St. Ann., ยง 10551), and no summons in error was issued and served on the Attorney General, nor any general appearance entered by him, the Criminal Court of Appeals has no jurisdiction to entertain the appeal on its merits and will dismiss it.

For the reasons stated, the motion of the Attorney General to dismiss the appeal is sustained, and the appeal is dismissed.