Arispi v. Territory

1909 OK CR 33, 99 P. 1099, 2 Okla. Crim. 79, 1909 Okla. Crim. App. LEXIS 115

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 22, 1909
• Docket: No. 2188, Okla. T.
• Status: Published

Opinion

DOYLE, Judge.

The plaintiff in error, Adolpho Arispi, was prosecuted by indictment, and was tried and convicted of the criminal offense of uttering and passing a forged instrument. At the April, 1907, term of the district court of Caddo county, Okla. T., the jury returned a verdict of guilty, a motion for a new trial was overruled, and on May 8, 1907, the court sentenced the defendant to confinement in the territorial prison for the term of two years at hard labor, and adjudged that he pay the costs of prosecution, to all of which exceptions were allowed. Thereupon the court advised the defendant of his right to an appeal, and fixed bail in the sum of $800, and fixed the time of filing the case-made in the Supreme Court to be within 120 days from the date of judgment. On September 6, 1907, there was filed in the Supreme Court of the territory of Oklahoma his petition in error, together with a statement of the pleadings, orders, and judgment in said case, without a transcript of the evidence taken upon the trial. To this was attached a.defective certificate of the trial judge. Upon the organization of the state the case was duty transferred to the Supreme Court of Oklahoma, and was there pending when this court was created. It was then duty transferred, as by law provided, by the Supreme Court to this court.

There is nothing in the record before this court showing notice to the county clerk of Caddo county, and notice to the county attorney of said county, that the defendant appeals from the judgment 'rendered. Section 5610, Wilson’s Eev. & Ann. St. 1903, provides as follows.:

“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 territory, a similar notice must be served upon the defendant, if he can be found in the county; if not, then by posting úp a notice three weeks in the office of the clerk of the district court.”

An appeal may be taken, as a matter of right, by the defendant from any judgment against him, under the provisions of our Criminal Code; but the matter of perfecting an appeal is a matter of statutory regulation. It must be taken in the manner prescribed by law. Sections 5606-5621, art. 16; c. 68 (Procedure — ■ Criminal) Wilson’s Eev. & Ann. St. 1903, prescribes specific and definite rules of practice for taking appeals in criminal cases. So far as appears by tbe record in this case, there has been a failure to comply with these statutory provisions. In order to give this court jurisdiction, notice, as required by the foregoing provision, must be served upon the clerk of the court and the prosecuting attorney. The proof of service and the notices, or a waiver ol the same, should be filed with the record in the appellate court, or, in lieu thereof, there should be filed duly authenticated copies. There is no case in this court upon the record before us, which confers jurisdiction to review the errors set forth in the petition in error.

In the case of Bailey et al v. Territory of Oklahoma, 9 Okla. 461, 60 Pac. 117, Chief Justice Burford, expressing the opinion of the court, in part says:

“'The notice to the clerk of the trial court and to the county-attorney are the prerequisite steps to conferring on this court the jurisdiction to hear and determine the particular cause.”

The Attorney General having filed motion to dismiss the appeal for the reasons hereinbefore stated, we are of opinion that the motion to dismiss the appeal should be sustained.

For the reasons stated, the purported appeal is dismissed at the cost of plaintiff in error.

FUEMAN, Presiding Judge, and BAKEB, Judge, concur.