Oklahoma v Gray

Annotate this Case

Oklahoma v Gray
1941 OK CR 42
111 P.2d 514
71 Okl.Cr. 309
Decided: 03/12/1941
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Right of State to Appeal Rests on Statutory Authority Which Cannot Be Enlarged by Construction. The right of the state to appeal from any order or judgment of the trial court rests upon statutory authority, which cannot be enlarged by construction. Section 3191, O. S. 1931, 22 Okla. St. Ann. § 1063.

2. Same-Right of State to Appeal on Question of Law Reserved During Trial Though Defendant Acquitted. While the state has no right to bring error or appeal from a judgment in favor of defendant, entered upon a verdict of acquittal, there is no constitutional inhibition in conflict with the statute conferring the right of appeal which is as follows:

"Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:

"1. Upon judgment for the defendant on quashing or setting aside an indictment or information.

"2. Upon an order of the court arresting the judgment.

"3. Upon a question reserved by the state." Section 3191, O. S. 1931, 22 Okla. St. Ann. § 1053.

The state under subdivision 3 has the right to take an appeal to this court upon any question of law reserved by the state during the trial. The fact that the defendant may have been acquitted and could not again be tried for the same offense will not in any way interfere with the right of the state to appeal and have the questions so reserved settled.

3. Same-Questions Considered on Appeal-Exceptions to Be Taken. Only those questions, unless jurisdictional, or of

Page 310

fundamental character, can be considered on appeal which were raised in the trial court on exceptions taken.

4. Same-Order Denying Motion for New Trial After Acquittal not Appealable. An order denying a motion for new trial after verdict of acquittal being nonappealable, an attempted appeal therefrom will be dismissed.

5. Same-Requisite Record in Appeal by State on Question Reserved-Direction by Appellate Court That Additional Record Be Certified to It. In case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated, the Criminal Court of Appeals may direct any other part of the proceedings and record to be certified to them. Section 3201, O. S. 1931, 22 Okla. St. Ann. § 1063.

6. Appeal and Error-"Bill of Exceptions" Defined. A "bill of exceptions" is a written statement of objections made and exceptions reserved by counsel to a ruling, order, or judgment of the trial court, setting out the proceedings and acts of trial judge alleged to be erroneous and signed and authenticated by the trial judge according to law and duly certified by and filed in the office of the clerk of the court.

7. Same-Nullity of Bill of Exceptions Signed by Judge Other Than Trial Judge. A bill of exceptions must be signed by the judge who tried the case, and where a case was tried by one judge and the bill of exceptions is signed and allowed by another, and no showing is made as to inability of the trial judge to do so, such bill of exceptions is a nullity.

8. Appeal and Error-Procedure for Appeal by State Notice to Be Served on Court Clerk and on Defendant. An appeal by the state in a criminal case is taken by the service of a written notice upon the clerk of the trial court, stating that the appellant appeals from the order or decision of the court upon a question reserved 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 three weeks in the office of the clerk of the district court. These notices are prerequisite steps to conferring on this court jurisdiction to determine the question presented.

9. Same--Service of Notice of Appeal on Defendant's Attorney of Record Insufficient. The state, intending to appeal upon a question reserved by the state, must serve notice of appeal on the defendant personally, or in the alternative, must post such notice in office of court clerk, if defendant cannot be found in the county; service of notice on the defendant's attorney of record being insufficient.

Page 311

10. Same-Prosecuting Attorneys-Power of Court to Appoint Special County Attorney-Special County Attorney Without Authority to Take Appeal on Reserved Question After Acquittal of Defendant. The code of Criminal Procedure provides: "If the county attorney fails, or is unable to attend at the trial, or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial."

Aside from any statute, this power is inherent in a court of general jurisdiction. Section 3056, O. S. 1931, 22 Okla. St. Ann. § 859.

Where the trial results in a verdict and judgment of acquittal, the duties of a special county attorney become functus officio. In such a case he is without authority to take an appeal "upon a question reserved by the state."

11. Same-Appeal on Question Reserved by State-Duty of County Attorney as to Service of Notice of Appeal and Proof Thereof. When a county attorney desires to appeal a case upon a question reserved by the state and upon which it is important to the correct and uniform administration of the criminal law that this court should decide, it is his duty to see that notice of such appeal is served and proof of service made in the manner required by the statute. Section 3193, supra, 22 Okla. St. Ann. § 1055.

Appeal from District Court, Tulsa County; Prentiss E. Rowe, Judge.

J. B. Gray was acquitted of the offense of feloniously allowing an unlawful claim against the Tulsa county highway fund, and the State takes a purported appeal. Appeal dismissed.

Statement of the Case.

On September 23, 1938, a grand jury of Tulsa county returned an indictment charging that on the 4th day of October, 1937, J. B. Gray, defendant in error, while acting as county commissioner of Tulsa county, did feloniously approve and allow a certain unlawful, fraudulent and unauthorized claim against the Tulsa county highway fund, filed by W. E. Davis, county engineer of Tulsa county, for the sum of $23.15, and purporting to be for traveling expenses of employees of the highway department

Page 312

of Tulsa county, incurred while traveling outside of Tulsa county.

"That two items of said claim were for hotel expenses, one in the total amount of $3.01, and another in the total amount of $3.42, were not hotel expense of employees, servants or agents of the highway department of Tulsa county, but were for the hotel expense of the defendant. J. B. Gray."

On November 28, 1938, the county attorney of Tulsa county in writing certified to the court that he is disqualified in the above styled and numbered case. An order appointing special county attorney was entered in said case, which omitting formal parts concludes as follows:

"Ordered, that said Phil W. Davis, Jr. be and he is appointed in this proceeding and cause to appear for and to represent the State of Oklahoma and to perform the duties required by law to be performed by the county attorney of Tulsa county herein, and the said Phil W. Davis, Jr. is vested with all powers of such county attorney for that purpose, and with the duties and rights provided by Section 7621, Oklahoma Statutes, 1931.

"Harry L. S. Halley,

"Judge of the District Court."

It appears from the record that on December 21st, the defendant's demurrer to the information was overruled.

On February 20, 1939, the case came on for trial before Prentiss E. Rowe, a judge of said court, a jury was impaneled and, on February 25th, returned a verdict finding the defendant, J. B. Gray, not guilty. Thereupon the court adjudged and ordered that:

"The defendant, J. B. Gray, be and he is discharged and acquitted of and from the aforesaid indictment, and the charges therein contained, and that he go hence without day, and that all costs herein be taxed against the State of Oklahoma."

Page 313

"To said verdict and to said judgment and each of them the State of Oklahoma excepts and its exceptions are allowed. Prentiss E. Rowe, District Judge."

Thereafter on the same day the state filed a motion for a new trial, alleging:

"The State of Oklahoma avers and alleges that the trial court committed an error upon said trial, and that there is error in the rulings of the trial court, that said rulings were adverse and prejudicial to the State of Oklahoma, and that each of said errors prevented the state from having a fair trial, and that the State of Oklahoma as to each and all of said rulings has duly excepted and reserved for appeal the questions of law involved in this, to wit:

"1. The court erred in refusing to permit the state to prove, as a part of its case in chief, other transactions and acts committed by the defendant, J. B. Gray, tending to show the commission of other crimes committed by the defendant similar to the one charged in the indictment and constituting a part of the same system, general scheme, plan, and method of the defendant, pursued in the approval and allowance by him as county commissioner of Tulsa county of other similar claims against Tulsa county, said other transactions also showing the intent and motive of the defendant in connection with the acts committed by him in the allowing of the unauthorized claim, for the allowance of which he was indicted herein."

Then four assignments, that the court erred in giving to the jury instructions Nos. 1, 3, 4, and 5; then 17 assignments based on the refusal of the court to give 17 instructions requested by the state. Then follows assignments based upon alleged misconduct of the trial judge in "commenting upon the evidence and expressing opinions in the presence of the jury as to the credibility of witnesses and as to other facts involved in the case, which comments were unfavorable to the state and its case and was prejudicial thereto."

Page 314

The remaining assignments are, "errors of law committed upon the trial, not included in any of the foregoing assignments but in addition thereto, and disclosed by the record", and "That said verdict is contrary to law and the evidence. No. 30. That said judgment is contrary to the evidence."

"Phil W. Davis, Jr.,

"Special County Attorney

"Acting by Appointment of the Court herein."

Thereafter the following order was entered:

"Now on this 4th day of March, 1939, the same being a juridical day of the January, 1939 term of this court, comes the State of Oklahoma, by Phil W. Davis, Jr., Special county attorney herein, in open court and excepts to each and all the rulings of the court upon the trial of this cause before Honorable Prentiss E. Rowe, presiding judge upon said trial which were adverse to the State of Oklahoma, and excepts to the verdict and judgment rendered in said cause and each of them, and now in open court gives notice of its appeal to the Criminal Court of Appeals of Oklahoma from each of said rulings and decisions and from said verdict and judgment and asks that this its notice of appeal be entered upon the trial docket and upon the proper dockets of the court, and the same is done accordingly. "Signed: Leslie Webb,

"Judge of the District Court."

Thereafter, on the 7th day of March, there was filed in said cause notice of appeal and acknowledgment of service by "Cal Crum, Court Clerk, and M. A. Breckenridge, Attorney for J. B. Gray, Defendant."

It appears from the record that thereafter on the same day, to, wit: March 7, 1939, it was ordered that the State of Oklahoma be and is hereby allowed 60 days from and after this date in which to make and serve its case-made on appeal to the Criminal Court of Appeals, the defendant

Page 315

to have ten days in which to suggest amendments, same to be signed and settled on five days notice in writing by either party:

"Signed: Harry L.S. Halley,

"Judge of the District Court"

Thereafter on the 10th day of March, 1939, the trial judge entered order overruling motion for a new trial, omitting formal parts, as follows:

"Ordered, considered and adjudged that the aforesaid motion for new trial of the State of Oklahoma be and the same is overruled and denied. To the said decision, order and judgment of the court overruling defendant's motion for a new trial the state of Oklahoma excepts and its exceptions are allowed."

On the same day the following notice of appeal was filed:

"Now on this 10th day of March, 1939, comes the Stateof Oklahoma by its special county attorney, Phil W. Davis, Jr., and separately excepts to each and all the rulings of the court upon the trial of this case before Honorable Prentiss E. Rowe, judge presiding, which were adverse to the State of Oklahoma and further excepts to the verdict of the jury herein and further excepts to the judgment rendered in said case, and to order and judgment of the court overruling the motion for new trial, and, now in open court gives notice of its appeal and of its intention to appeal to the Criminal Court of Appeals of the State of Oklahoma, from each of said rulings and decisions and from said verdict and from said judgment, and to the order and judgment of the court overruling the motion for new trial, and asks that this notice of appeal be entered on the trial docket and upon the proper dockets of the court.

"Signed: Phil W. Davis, Jr.,

"Special County Attorney

"Acting by Appointment

of the Court Herein.

"March 10, 1939

Page 316

"Permission granted to file.

"Filed Mar 10 1939

"Harry L. S. Halley, Judge.

"Cal Crum, Court Clerk."

Thereafter, on the 14th day of March, another notice of appeal was filed with acknowledgment of service, signed, "Cal Crum, Court Clerk" "M. A. Breckenridge, Attorney and counsel of record for J. B. Gray, defendant."

Thereafter, on the 8th day of May, 1939, an order was entered allowing the State of Oklahoma 60 days in addition to the time heretofore allowed in which to make and serve its case-made. "Signed: Harry L. S. Halley, Judge of the District Court."

Thereafter, on the 3rd day of July 1939, the same judge allowed 30 days additional to the time heretofore allowed in which to make and serve a case-made.

Thereafter the following order directing the court reporter to make case-made for appeal was entered:

"Order Directing Court Reporter to

Make Case Made for Appeal

"Now, on this 8th day of July, 1939, upon application of Phil W. Davis, Jr., Special county attorney acting by appointment of the court in this cause, it being made to appear to the satisfaction of the court that the State of Oklahoma has given notice of its appeal, and of its intention to appeal from the judgment of this court heretofore rendered and entered herein, and upon questions of law reserved by the state upon the record in this cause: it is

"Ordered that C. J. Harry, court reporter of this court, who reported this cause in the trial thereof, make out a proper case made in this cause for the purpose of appeal to the Criminal Court of Appeals of the State of Oklahoma, from said judgment and said question reserved by the State of Oklahoma, and furnish the same to said special county attorney for the State of Oklahoma, for service and filing in the Criminal Court of Appeals as provided by

Page 317

and that the expense of the preparation of said case made shall be paid by Tulsa county.

"Harry, L. S. Halley,

"District Judge."

Thereafter, on the 16th day of August, 1939, the case-made was signed and settled as a true and correct case-made with direction that the same be attested and filed by the court clerk. "Signed: Prentiss E. Rowe, District Judge."

On the same day was duly certified by

"Cal Crum, Court Clerk,

"By A. A. Boodie, Deputy."

The petition in error with case-made attached was filed in this court August 18, 1939.

The case-made covers more than 400 pages.

The brief on the part of the state, signed and filed by Phil W. Davis, Jr., "Special County Attorney for the State of Oklahoma, plaintiff in error," sets forth the following:

"Specifications of error.

"1. Exclusion of part of opening statement for state.

"2. Rejection of state's evidence of similar offenses.

"3. Rejection of Attorney General's opinion, State's Exhibit No. 19.

"4. Rejection of Attorney General's opinion, State's Exhibit No. 20.

"5. Rejection of Attorney General's opinion, State's Exhibit No. 21.

"6. Rejection of evidence of state's witness, Andy Stokes.

"7. Rejection of evidence of defendant's request to excise board for traveling expense appropriation.

Page 318

"8. Rejection of evidence of State Examiner and Inspector.

"9. Admission of defendant's evidence as to his official duties.

"10. Refusal to give instructions requested by state."

Counsel in his brief states:

"In substance, the contention of the state, which was established, without material controversy, by the admission of the defendant and by the evidence of the state, was that the defendant on October 4, 1937, was one of the board of county commissioners, the other members being John H. Miller and Harry L. Hopkins, that the three commissioners met as such board on that day, that the defendant moved and voted for the approval of claim No. 268,363 in the sum of $23.15 theretofore filed by W. E, Davis, county engineer of Tulsa county, against account No. 7 of the county highway fund for the fiscal year ending June 30, 1938 (C-m. 162-164) ; that said claim was approved by the board for payment and a warrant was ordered by it to issue to said W. E. Davis for the full amount of the claim, and the amount thereof was paid by the county treasurer to the bank to which said W. E. Davis had assigned it (C-m. 339-40) ; that one of the items included in said claim and payment was a hotel bill amounting to $3.42 incurred by the defendant at the Biltmore Hotel in Oklahoma City on August 17-18, 1937; which room was occupied by the defendant, J. B. Gray, at said time, as shown by his registration card and ledger sheet at the hotel which item thereafter had been charged by the hotel to a running account maintained by W. E. Davis, county engineer, at said hotel."

It is also stated in the brief:

"The indictment also charged that another item contained in the claim of W. E. Davis, amounting $3.01, was for the hotel expense of the defendant but this latter item, as was disclosed by the evidence, was the hotel bill of another person who accompanied the defendant on the trip to Oklahoma City in question. Hence, this latter item was

Page 319

properly disregarded, the proof having failed to support the indictment with reference thereto."

And the further statement:

"The defendant contended that he incurred said item of expense at the Biltmore Hotel as a member of the county welfare board in connection with the State relief funds that were sent in to Tulsa county, and upon a trip made by the defendant to see the 'State Welfare Board' and 'W.P.A. officials', that he charged it to W.E. Davis' account so that the county could pay the bill' and that he did not file the claim 'directly in his own name'; in other words that the infraction of law was justified by a bona fide intent to serve the public welfare."

M. A. Breckenridge, counsel of record for the defendant, filed a motion to dismiss the state's appeal herein on the ground:

"That this attempted appeal is being prosecuted by one Phil W. Davis, a special prosecutor under an order of the district court of Tulsa county, appointing him as such special prosecutor in the above entitled and numbered case, and is not concurred therein by the county attorney of Tulsa county, or the Attorney General of the state, that said prosecutor was appointed under section 7621, O.S. 1931, 19 Okla. St. Ann. § 187. That the defendant was tried before a jury and was acquitted, that thereupon the duties of said special prosecutor became functus officio, therefore the attempted appeal by him to this court of said case is without authority of law and a nullity.

'The defendant contends that in as much as the record, as well as the brief discloses that no question of law as contemplated by the statute is involved in this attempted appeal, the appeal should be dismissed.

"In our judgment it needs no citation of authority or argument to confirm our contention that a ruling on the question of evidence in this case would be of no service in the future, because rulings on evidence must be covered by the facts in each particular case, and there never are two cases with identical facts.

Page 320

"If appeals of this nature were permitted by this court it would be overwhelmed with such litigation, which would consume the time of this court on questions which are entirely moot and could serve no useful purpose.

"In our judgment it was never intended that the state could take an appeal in such cases unless there was some naked question of law which had not only operated injuriously to. the rights of the State in that particular case, but might so operate in the future.

"A reference to this record, charged to the county of Tulsa, consisting of 428 pages, in and of itself should cause this court to dispose of it by its dismissal, thereby setting the wholesome precedent that the counties of the state should not be subjected to the unnecessary burden of the preparation of such records, and that this honorable court should not be burdened with such useless and absurd appeals."

In the response to motion to dismiss the appeal, it is stated:

"The Attorney General now appears and joins in this response. Section 7621, O. S. 1931, 19 Okla. St. Ann. § 187, which defines the authority of counsel to act for the state in taking this appeal recites that:

" 'The person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose."' Citing and quoting from the opinion in State v. Rule, 11 Okla. Cr. 237, 144 P. 807.

February 15, 1940, the case was submitted on the motion to dismiss the appeal, on the briefs and oral argument of the "Special County Attorney" and the state granted leave to file a supplemental brief.

Phil W. Davia, Jr., Sp. Co. Atty., of Tulsa, Mac Q. Williamson, Atty. Gen., and Randell S. Cobb, Asst. Atty. Gen., for plaintiff in error.

M. A. Breckenridge, of Tulsa, for defendant in error.

Page 321

DOYLE, J. It is well settled that no writ of error or appeal lies on behalf of the state to review or set aside a verdict or judgment of acquittal in a criminal case, however, while the state cannot bring error or appeal to afford the state an opportunity for a new trial after acquittal, there is no constitutional limitation in this state in conflict with our statute authorizing an appeal on a question of law reserved by the state. State v. Smith, 30 Okla. Cr. 144, 235 P. 273, and cases cited.

The right of the state to appeal from any order or judgment of a trial court rests upon statutory authority which cannot be enlarged by construction.

The Code of Criminal Procedure provides:

"Appeals to the Criminal Court of Appeals may be taken by the state in the following cases and no other:

"1. Upon judgment for the defendant on quashing or setting aside an indictment or information.

"2. Upon an order of the court arresting the judgment.

"3. Upon a question reserved by the state." Section 3191, Sts. 1931, 22 Okla. St. Ann. § 1053.

"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 three weeks in the office of the clerk of the district court." Section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055.

"An appeal taken by the state in no case stays or affects the operation of the judgment in favor of the defendant, until the judgment is reversed." Section 3194, Sts. 1931, 22 Okla. St. Ann. § 1056.

"Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of

Page 322

record in the trial court." Section 3198, Sts. 1931, 22 Okla. St. Ann. § 1060.

"The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken." Section 3200, Sts. 1931, 22 Okla. St. Ann. § 1062.

"In case of an appeal from a question reserved on the part of the state it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal. When the question reserved is defectively stated the Criminal Court of Appeals may direct any other part of the proceedings and record to be certified to them." Section 3201, Sts. 1931, 22 Okla. St. Ann. § 1063.

Under the statute, when the appeal is from a judgment on quashing or setting aside an indictment or information, or from an order of the court arresting a judgment, an appeal taken by the state will not stay or affect the operation of such judgment or order in favor of the defendant, until the judgment or order is reversed and the case remanded with direction to the trial court to vacate the judgment or order in favor of the defendant, and reinstate the case and proceed as though no such judgment or order had ever been entered. Section 3194, Sts. 1931, 22 Okla. St. Ann. § 1056, supra. State v. Barnett, 60 Okla. Cr. 355, 69 P.2d 77.

In such cases it is the right and duty of the county attorney to take an exception and perfect an appeal from such judgment or order to this court.

Where the trial court sustains a demurrer to an indictment or information the judgment is final unless the court, being of opinion that the objection on which the demurrer is sustained may be avoided in a new indictment or information, direct the case to be resubmitted to the

Page 323

same or another grand jury, or that a new information be filed. Section 2952, Sts. 1931, 22 Okla. St. Ann. § 508; State v. Franks, 21 Okla. Cr. 213, 206 P. 258.

If the court do not direct the case to be further prosecuted, the defendant, if in custody, must be discharged. Section 2953, Sts, 1931, 22 Okla. St. Ann. § 509; State v. Boston, 69 Okla. Cr. 307, 102 P.2d 889; State v. Sowards, 64 Okla. Cr. 430, 82 P.2d 324; State v. Graham, 38 Okla. Cr. 325, 261 P. 230; State v. Walton, 30 Okla. Cr. 416, 236 P. 629; State v. Robertson, 28 Okla. Cr. 234, 230 P. 932; State v. Vaughn, 15 Okla. Cr. 187, 175 P. 731; State v. Chappell, 12 Okla. Cr. 618, 152 P. 1199.

This court has held that while the state cannot bring error or appeal to reverse an acquittal of one accused of crime, the state has the right, under the 3rd subdivision of sec. 3191, 22 Okla. St. Ann. § 1053, subd. 3, to take an appeal to this court upon any question of law reserved by the state during the trial of a criminal case. State v. Frisbee, 8 Okla. Cr. 406, 127 P. 1091; State v. Rule, 11 Okla. Cr. 237, 144 P. 807.

In such cases the state does not bring any part of the trial or proceedings of the case, except the question reserved and the judgment of acquittal, and if such question of law is decided in favor of the state, it simply settles a question of law, and does not affect the verdict of acquittal. "Section 3201, supra."

We may state in the language of the court in United States. v. Evans, 213 U.S. 297, 29 S. Ct. 507, 508, 53 L.Ed. 803:

" 'The appellee in such a case, having been freed from further prosecution by the verdict in his favor, has no interest in the question that may be determined in the proceedings on appeal, and may not even appear. Nor can his appearance be enforced. Without opposing argument,

Page 324

which is so important to. the attainment of a correct conclusion, the court is called upon to lay down rules that may be of vital interest to persons who may hereafter be brought to trial. All such persons are entitled to be heard on all questions affecting their rights, and it is a harsh rule that would bind them by decisions made in what are practically "moot" cases, where opposing views have not been presented.' "

In the case of State v. Miller, 14 Ariz. 440, 130 P. 891, 892, it is said:

"While the evident purpose of the statute, as shown by its language, is to establish a correct and uniform administration of the criminal law, it seems to us that it is not calculated to effectuate that purpose, unless the court is afforded the assistance of counsel on both sides of the question."

The defendant in this case, tried on an indictment, before a competent court and jury, on the issue of his guilt or innocence, was acquitted. That ended the case so far as he was concerned. The trial court had exhausted its jurisdiction both of the person and the subject matter. The judgment of acquittal was final.

Chapter 35 of article 14, § 7615 et seq., 19 Okla. St. Ann. § 181 et seq., which creates the office of county attorney and prescribes the duties, further provides (sec. 7621, Sts. 1931, 19 Okla. St. Ann. § 187):

"The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act may, appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose. Such attorney shall be paid a reasonable compensation for his services by the county for which he is so appointed."

Page 325

The Code of Criminal Procedure provides (sec. 3056, Sts. 1931, 22 Okla. St. Ann. § 859) :

"If the county attorney fails, or is unable to attend at the trial or is disqualified, the court must appoint some attorney at law to perform the duties of the county attorney on such trial."

The first statute was intended to give the district court the power and authority to appoint temporarily a county attorney to act in the place and stead of the regular county attorney, under the circumstances enumerated in the statute.

In the case of Hisaw v. State, 13 Okla. Cr. 484, 165 P. 636, 640, it is said:

"Independent of the statute, however, the court would have the inherent power to appoint a special county attorney under any of the circumstances therein enumerated.

"The latter statute permits the court to appoint a special county attorney for the trial of any particular case where the regular county attorney is disqualified.

"These statutes are merely expressive of the inherent powers of a court of general jurisdiction, and when it is made to appear, as it does in this case, that a contingency arose under which it was proper for the court to appoint a substitute for the county attorney, although the appointment be made in vacation, if afterwards in open court the same judge recognizes the appointment and permits a qualified person to act upon the trial in the place and stead of the disqualified county attorney, there has been a sufficient compliance with the statutory requirements to validate said appointment."

And see Nowlin v. State, 65 Okla. Cr. 165, 83 P.2d 601; Hayes v. State, 41 Okla. Cr. 302, 274 P. 41; Nance v. State, 41 Okla. Cr. 379, 273 P. 369; Baggett v. State, 35 Okla. Cr. 119, 21S P. 875.

Page 326

In the instant case, it appears that Dixie Gilmer, county attorney of Tulsa county, having disqualified in this case, Harry L. S. Halley, a judge of the district court, entered an order appointing Phil W. Davis, Jr., as special county attorney.

It is the right of a county attorney or the Attorney General to reserve exceptions and to perfect an appeal from an order setting aside an indictment or information or from an order arresting a judgment or from a judgment sustaining a demurrer to an indictment or information, where the trial court directs the case to be resubmitted to the same or another grand jury, or that a new information be filed. In other words, where the trial court retains jurisdiction in such cases pending the decision or opinion of this court. State v. Franks, supra.

In such cases we may only decide the questions of law involved for the future guidance of the trial court. Where by the judgment of the trial court a defendant is discharged or a judgment of acquittal entered, the prosecution is at an end and the case must be dismissed. In such a case, where an appeal on behalf of the state from a question reserved is desired, the county attorney, or if the Attorney General, on inspecting the record is satisfied that error has been committed to the prejudice of the state, and upon which it is important to the correct and uniform administration of the criminal law that this court should decide, a "bill of exceptions" or case-made and the judgment of acquittal duly certified by the court clerk may be filed in the trial court clerk's office, with proof of service of written notice of appeal upon the clerk of the trial court and upon the defendant as required by section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055, supra. The same to be filed in the office of the clerk of this court. This is a method afforded the law officers of the state to take the

Page 327

opinion of the Criminal Court of Appeals upon questions which they consider important to the correct and uniform administration of the criminal law.

It may therefore be considered that in such cases the duties of a special county attorney have terminated and he is without authority to take an appeal for the state.

The record further shows the successive steps taken by the special county attorney to take an appeal on behalf of the state. It appears that on March 7th, Judge Halley entered an order allowing the state 60 days from this date in which to make and serve a case-made on appeal to this court. Thereafter, on March 10th, the trial judge entered an order overruling the state's motion for a new trial, and on the same day Judge Halley granted the special county attorney leave to file exceptions "to each and all the rulings of the court upon the trial of this case before Hon. Prentiss F. Rowe, Judge Presiding.", and that the state's notice of appeal be entered on the trial docket. Thereafter, on May 8th, Judge Halley entered an order allowing the state 60 days in addition to the time heretofore allowed, in which to make and serve its case-made. Thereafter, on the 3rd day of July Judge Halley allowed 30 days additional to the time heretofore allowed in which to make and serve a case-made. Thereafter, on July 8, 1939, Judge Halley made and entered an order directing court reporter to "make out a proper case-made in this cause for the purpose of appeal to the Criminal Court of Appeals from such judgment and questions reserved by the state, and furnish the same to said special county attorney for service and filing in the Criminal Court of Appeals, and that the expense of the preparation of said case-made shall be paid by Tulsa county."

The record shows that when the trial judge denied the state's motion for a new trial, he allowed exceptions as

Page 328

follows: "To. the said decision, order and judgment of the court, the State of Oklahoma objects and its exceptions are allowed."

The statute provides (sec. 3201, Sts. 1931, 22 Okla. St. Ann. § 1063, supra) :

"In the case of an appeal from a question reserved on the part of the state it shall not be necessary for the clerk of the court below to certify in the transcript any part of the proceedings and record except the bill of exceptions or case-made and the judgment of acquittal."

When an appeal on behalf of the state from a verdict or a judgment of acquittal, where the county attorney or the Attorney General believes that error has been committed on the trial of the case to the prejudice of the state, and upon which it is important to the correct and uniform administration of the criminal law that the Criminal Court of Appeals should decide, the proper procedure of pointing out errors in the proceedings and by so doing obtain an authoritative exposition of the law to be followed by the courts, is by a bill of exceptions allowed as being true and correct, which must be signed and duly authenticated by the trial judge according to law, with such qualification or explanation as the trial judge may elect to state, the same to be duly certified by the court clerk and filed with proof of service of notice of appeal. The law officers, of the state may then take the appeal by filing the bill of exceptions in the clerk's office of the Criminal Court of Appeals.

Such a construction of the statute accords it a meaning in line with its purpose and legislative intend.

After a careful examination of the record, we are not disposed to place our decision in this case upon the grounds hereinbefore stated alone. It affirmatively appears from the record that no written notice of appeal was ever served

Page 329

upon the defendant either in person or "by posting up a notice three weeks in the office of the clerk of the district court", as required by section 3193, Sts. 1931, 22 Okla. St. Ann. § 1055, supra. Neither of these methods was complied with by the special county attorney, or counsel representing the state.

This question of jurisdiction for want of proper notice was not alluded to in the state's briefs, nor referred to by the special county attorney in his oral argument.

Under this section notice of appeal and proof thereof, given and made in the manner and within the time prescribed for perfecting an appeal, is jurisdictional.

Under repeated decisions of this court it is held that the state attempting to appeal under this section must serve notice of appeal on the defendant personally, or must post such notice in office of court clerk if the defendant cannot be found in the county; service of notice on defendant's attorney of record being insufficient. State v. Stone, 56 Okla. Cr. 239, 37 P.2d 320.

In State v. Foster, 55 Okla. Cr. 450, 32 P.2d 750, this court held:

"When the state attempts to appeal in a criminal case under section 3193, Okla. St. 1931, 22 Okla. St. Ann. § 1055, in order to give this court jurisdiction, it is incumbent upon the state to serve its written notice of appeal upon the defendant personally, or, in the alternative, to show that the defendant cannot be found in the county and to post notice for three weeks in the office of the court clerk. When this is not done, this court does not acquire jurisdiction, and the attempted appeal will be dismissed"

And see State v. Simmons, 43 Okla. Cr. 404, 279 P. 524; State v. Hudson, 21 Okla. Cr. 475, 204 P. 133; Burgess v. State, 18 Okla. Cr. 574, 197 P. 173; State v. Childers, 17 Okla. Cr. 627, 19t P. 1043;State v. McElroy, 14 Okla.

Page 330

Cr. 314, 170 P. 915; Sharer v. State, 40 Okla. Cr. 420, 269 P. 511; Patton v. State, 60 Okla. Cr. 409, 64 P.2d 1245.

Under the statute the notice to the clerk of the trial court stating that the appellant appeals from the order or judgment and a similar notice to the defendant, given and made in the manner and within the time prescribed for perfecting an appeal, are the prerequisite steps to conferring on this court jurisdiction to hear and determine the question reserved by the state. When the record in this court fails to show notice and proof of service made in the manner required by the statute, the purported appeal will be dismissed for want of jurisdiction.

From the foregoing review of the record, the authorities cited, and the reasons stated, we are of the opinion that this court is without jurisdiction to entertain the attempted appeal in this case.

It is therefore considered and adjudged that the purported appeal from the district court of Tulsa county herein be dismissed.