Austin v. State

Court of Criminal Appeals of Oklahoma

Austin v. State

1934 OK CR 11, 28 P.2d 1113, 55 Okla. Crim. 278, 1934 Okla. Crim. App. LEXIS 108

CourtCourt of Criminal Appeals of Oklahoma

DecidedJanuary 12, 1934

DocketNo. A-8625.

StatusPublished

Cited by7 cases

This text of 1934 OK CR 11 (Austin v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Austin v. State, 1934 OK CR 11, 28 P.2d 1113, 55 Okla. Crim. 278, 1934 Okla. Crim. App. LEXIS 108 (Okla. Ct. App. 1934).

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Opinion

EDWARDS, P. J.

Plaintiff in error Avas convicted in the county court of Blaine county of having, unlaAvful possession of Avhisky and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

This appeal must he dismissed for two reasons :

First. The notice of appeal Avas not served on the court clerk as required by section 3193, Okla. Stat. 1931, but was served only on the county attorney. The failure to serve the court clerk is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

*279 Second. The case-made was not served on the county attorney within the time fixed by law nor within any legal extension of time.

Section 3192, Okla. Stat. 1931, provides that an appeal from a misdemeanor may be taken in 60 days, or upon good cause shown the trial judge may extend the time not to exceed 60 days additional. In the instant case judgment was entered on the 29th day of May and no order of extension was made till the 29th day of July, 61 days from the date of judgment. Time is computed by excluding the first day and including the last. Section 22, Okla. Stat. 1931; Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.

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EDWARDS, P. J.

Plaintiff in error Avas convicted in the county court of Blaine county of having, unlaAvful possession of Avhisky and was sentenced to pay a fine of $200 and to serve 30 days in the county jail.

This appeal must he dismissed for two reasons :

First. The notice of appeal Avas not served on the court clerk as required by section 3193, Okla. Stat. 1931, but was served only on the county attorney. The failure to serve the court clerk is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719.

*279 Second. The case-made was not served on the county attorney within the time fixed by law nor within any legal extension of time.

Section 3192, Okla. Stat. 1931, provides that an appeal from a misdemeanor may be taken in 60 days, or upon good cause shown the trial judge may extend the time not to exceed 60 days additional. In the instant case judgment was entered on the 29th day of May and no order of extension was made till the 29th day of July, 61 days from the date of judgment. Time is computed by excluding the first day and including the last. Section 22, Okla. Stat. 1931; Welch v. State, 38 Okla. Cr. 300, 260 Pac. 787.

The appeal is dismissed.

DAVENPORT and CHAPPELL, JJ., concur.

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1934 OK CR 11, 28 P.2d 1113, 55 Okla. Crim. 278, 1934 Okla. Crim. App. LEXIS 108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-state-oklacrimapp-1934.

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