Merritt v. State

1926 OK CR 353, 249 P. 436, 35 Okla. Crim. 194, 1926 Okla. Crim. App. LEXIS 341

Opinion

EDWARDS, J.

The plaintiff in error was convicted in the district court of Mayes county on a charge of assault with a dangerous weapon and sentenced to serve a term of two years in the state penitentiary. The verdict was returned on March 5, 1926. The motion for a new trial was overruled, and judgment and sentence entered on March 15, 1926-, The record for appeal was lodged in this court on September 13, 1926. The state has' filed motion to dismiss the attempted appeal for the reason that no notice of appeal was served upon the clerk of the court and the county attorney as required by section 2809, Comp. Stat. 1921, or by posting notice in case such officers were not found in the county. The only notice given was oral notice in open court at the time the motion for new trial was overruled, evidently in an attempt to give the notice provided for in section 782, Comp. Stat. 1921 (chapter 219, Session Laws 1917). This latter section does not repeal section 2809, •supra, but has application solely to appeals in civil causes. Burgess v. State, 18 Okla. Cr. 574, 197 P. 173.

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

BESSEY, P. J., and DOYLE, J., concur.