Butler v. State

1924 OK CR 57, 223 P. 406, 26 Okla. Crim. 245, 1924 Okla. Crim. App. LEXIS 54

• Court: Court of Criminal Appeals of Oklahoma
• Decided: March 1, 1924
• Docket: No. A-4434.
• Status: Published

Opinion

PER CURIAM.

This is an attempted appeal from a judgment of conviction rendered in the district court of Cherokee county on the 1st day of March, 1922, wherein the plaintiff in error, Bob Butler, was convicted of the crime of larceny of live stock, and punishment fixed as above stated. The petition in error and case-made were filed in this court on August 22, 1922.

The Attorney General has filed a motion to dismiss this appeal for the reason that no written notices of appeal were served on the county attorney and court clerk of Cherokee county, Okla., nor any summons in error issued and served upon the Attorney General, or waiver thereof by such officer.

There is also a motion to dismiss the appeal filed by counsel for plaintiff in error upon the ground that the plaintiff in error, pending this appeal, has applied for and been granted executive clemency.

This court has repeatedly held that where, pending appeal, the plaintiff in error applies for and is granted executive clemency, the same amounts to an abandonment of the appeal, and the appeal will be dismissed upon proper showing to that effect. In this ease, however, there is no sufficient showing to authorize the court to dismiss the appeal upon the application of plaintiff in error.

The record, however, supports the motion of the Attorney General to dismiss the appeal upon the grounds stated in the Attorney General's motion, and for the reason that no sufficient steps were taken by plaintiff in error by service of written notices of appeal upon the county attorney and the court clerk of Cherokee county, or by the service of summons in error upon the Attorney General, or by waiver of the same by such officer.

The appeal is dismissed.