Fogle v State

Fogle v State
1939 OK CR 93
93 P.2d 19
67 Okl.Cr. 146
Decided: 08/04/1939
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Right of Appellant to Have His Appeal Dismissed. An appeal to this court may be taken by a defendant as a constitutional right from any judgment rendered against him in a court of record. The right being a personal one to plaintiff in error, he may waive the same and have the appeal dismissed on his own motion.

2. Same-After Dismissal Judgment and Sentence Left in Full Force. Where plaintiff in error appeals from a judgment of conviction, files a formal dismissal of his appeal and the appeal is dismissed, the judgment and sentence of the trial court is left in full force and effect.

Appeal from District Court, Carter County; John B. Ogden, Judge.

Jesse Fogle was convicted of manslaughter in the first degree, and he brings error. Appeal dismissed.

Champion, Champion & Fischl and H. H. Brown, all of Ardmore, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for the State.

PER CURIAM. Plaintiff in error, Jesse Fogle, was by information charged with the crime of murder by killing one John Hurt, in said county, on or about the 21st day of March, 1937. On his trial the jury returned their verdict finding him guilty of manslaughter in the first degree, leaving the punishment to the court.

Motion for new trial was denied. On November 19, 1937, the court rendered judgment and he was sentenced to serve a term of ten years in the state penitentiary.

From the judgment an appeal was duly perfected by filing in this court on May 17, 1938, a petition in error with case-made attached.

Page 147

On July 27, 1938, application for extension of 60 days to serve and file brief was granted.

On September 14, 1938, the following motion to dismiss was filed:

"Comes now the plaintiff in error, Jesse Fogle, by and through his attorneys of record, H. H. Brown and J. B. Champion, and dismisses his appeal in the above entitled and numbered case.

"Dated this the 13th day of September, 1938.

"Jesse Fogle, plaintiff in error

"By J. B. Champion,

"H. H. Brown,

"His Attorneys."

On September 28th the motion to dismiss was submitted.

An appeal may be taken to this court by a defendant as a matter of constitutional right from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.

When an appeal has been taken, unless good cause is shown to the contrary this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Hancock v. State, 57 Okla. Cr. 329, 48 P.2d 348; McDessey v. State, 61 Okla. Cr. 345, 68 P.2d 113.

In the instant case it appears that plaintiff in error is now serving his sentence and there is no reason made to appear why the dismissal should not be ordered in compliance with the motion to dismiss.