Elliott v. State

Court of Criminal Appeals of Oklahoma

Elliott v. State

1918 OK CR 22, 170 P. 711, 14 Okla. Crim. 313, 1918 Okla. Crim. App. LEXIS 116

CourtCourt of Criminal Appeals of Oklahoma

DecidedFebruary 18, 1918

DocketNo. A-2872.

StatusPublished

This text of 1918 OK CR 22 (Elliott 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.

Bluebook

Elliott v. State, 1918 OK CR 22, 170 P. 711, 14 Okla. Crim. 313, 1918 Okla. Crim. App. LEXIS 116 (Okla. Ct. App. 1918).

Pincite

Opinion

DOYLE, P. J.

The plaintiff in error, Bert Elliott, was convicted of rape in the second degree, under an indictment charging him with the crime of rape committed upon one Virginia Newman, a female under the age of 14 years. The judgment and sentence of the court, rendered November 4, 1916, was that he be imprisoned in the penitentiary at McAlester for the term of one year and one day. From the judgment an appeal was. attempted to be taken by filing in this court á petition in error with a certified transcript of the record.

It appears from the-record that no notices of appeal were served as provided by law, and no summons in error *314 was ever issued, and no praecipe therefor was ever filed by counsel for plaintiff in error, and no waiver of summons in error by the Attorney General was ever filed, and * for this reason the Attorney General has filed a motion to dismiss the appeal. By numerous decisions of this court it is held that on a failure to file proof of service of the notices of appeal required by the statute to be served upon the county attorney and the clerk of the court in which the judgment was rendered, or the failure to have a summons in error served upon the Attorney General, or to file a waiver of the same within the time prescribed by the statute for taking an appeal, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. It follows that the motion to dismiss the appeal should be sustained.

The purported appeal herein is therefore dismissed, • and the cause remanded to the district court of Carter county, with direction to enforce its judgment and sentence.

ARMSTRONG and MATSON, JJ„ concur.

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DOYLE, P. J.

The plaintiff in error, Bert Elliott, was convicted of rape in the second degree, under an indictment charging him with the crime of rape committed upon one Virginia Newman, a female under the age of 14 years. The judgment and sentence of the court, rendered November 4, 1916, was that he be imprisoned in the penitentiary at McAlester for the term of one year and one day. From the judgment an appeal was. attempted to be taken by filing in this court á petition in error with a certified transcript of the record.

It appears from the-record that no notices of appeal were served as provided by law, and no summons in error *314 was ever issued, and no praecipe therefor was ever filed by counsel for plaintiff in error, and no waiver of summons in error by the Attorney General was ever filed, and * for this reason the Attorney General has filed a motion to dismiss the appeal. By numerous decisions of this court it is held that on a failure to file proof of service of the notices of appeal required by the statute to be served upon the county attorney and the clerk of the court in which the judgment was rendered, or the failure to have a summons in error served upon the Attorney General, or to file a waiver of the same within the time prescribed by the statute for taking an appeal, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. It follows that the motion to dismiss the appeal should be sustained.

The purported appeal herein is therefore dismissed, • and the cause remanded to the district court of Carter county, with direction to enforce its judgment and sentence.

ARMSTRONG and MATSON, JJ„ concur.

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Bluebook (online)

1918 OK CR 22, 170 P. 711, 14 Okla. Crim. 313, 1918 Okla. Crim. App. LEXIS 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-state-oklacrimapp-1918.