Fay v. State

1937 OK CR 144, 71 P.2d 771, 62 Okla. Crim. 358, 1937 Okla. Crim. App. LEXIS 136

Opinion

DAVENPORT, P. J.

This is an attempted appeal from the district court of Okmulgee county, Okla., rendered on verdict and judgment finding the defendant, John Fay, guilty of assault with intent to kill and murder, and fixing his punishment at six months in the state penitentiary.

The Attorney General has filed a motion to dismiss the appeal on the ground that no' notices of appeal were served on the county attorney or court clerk, and no summons in error was issued and served upon the Attorney General or the same waived.

An examination of the record shows that the motion to dismiss is well taken. In the case of Kirk v. State, 21 Okla. Cr. 34, 204 Pac. 465, this court held that where appellant within the time for taking an appeal served no notices of appeal upon the court clerk or county attorney as provided in section 5992, Rev. Laws 1910 (now section 3193, O. S. 1931 [22 Okla. St. Ann. § 1055]), and no summons in error was issued and served on the Attorney General, nor any general appearance entered by him, the Criminal Court of Appeals has no- jurisdiction to entertain the appeal on its merits and will dismiss it.

For the reasons stated, the motion of the Attorney General to dismiss the appeal is sustained, and the appeal is dismissed.

DOYLE and BAREFOOT, JJ., concur.