Erwin v. State

1937 OK CR 193, 74 P.2d 1173, 63 Okla. Crim. 315, 1937 Okla. Crim. App. LEXIS 184

Opinion

PER CURIAM.

The plaintiff in error was convicted, in the district court of Jackson county, of burglary in the second degree, and his punishment fixed at two years in the state penitentiary.

This appeal must be dismissed for the reason that no notice of appeal was served on the clerk of the court and county attorney as required by section 3193, O. S. 1931, 22 Okla. St. Ann. § 1055, which section in part reads 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.”

A failure to serve a notice upon the clerk of the court and the prosecuting attorney is jurisdictional. Lutke v. State, 37 Okla. Cr. 18, 255 Pac. 719; Austin v. State, 55 Okla. Cr. 278, 28 Pac. 2d 1113.

The appeal is dismissed.