Kirk v. State

1922 OK CR 41, 204 P. 465, 21 Okla. Crim. 34, 1922 Okla. Crim. App. LEXIS 200

Opinion

DOYLE, P. J.

This is an attempted appeal from a judgment of the district court of Rogers county, rendered on a verdict' finding the defendant, Willie Kirk, guilty of burglary and fixing his punishment at two years in the 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 clerk of the court and no summons in error was issued and served upon the Attorney General, or the same waived.

An examination of the; record discloses that the motion to dismiss is well taken. In the case of Burgess v. State, 18 Okla. Cr. 574, 197 Pac. 173, this court held that where appellant, within the time allowed for taking an appeal, served no notices of appeal upon the court clerk or county attorney, as provided by section 5992, Rev. Laws, and no summons in error was issued and served upon the Attorney General, nor any waiver of the issuance and service ever made by him within section 5997, Rev. Laws, or 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 this appeal is) sustained, and the appeal is hereby dismissed.

MATSON and BESSEY, JJ., concur.