People v. Gough

2 Utah 69

Opinion

BoeemaN, Justice,

delivered the opinion of the court upon the motion to dismiss:

The respondents urge as a ground for dismissing this appeal that no copy of the notice of appeal was served on them or their attorneys. Our Criminal Procedure Act (§ 363) says that “ an appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party.” In this case the notice was filed with the clerk, but the record does not show that any copy was served upon the adverse party. This defect in the record is sought to be supplied in this court, by affidavits showing the service. We do not think this can be done. This court must be bound by the record as we find it, and cannot allow it to be amended in this court by extraneous proof. We think that this view of the case is borne out by the People v. Phillips, 45 Cal. 44; The People v. Pico, decided by California Supreme Court at January Term, 1872, and referred to in the annotated “ Penal Code ” of California, and by the case of Boston v. Haynes, 31 Cal. 107.

The motion is sustained and the appeal dismissed.

Schaeffeb, O. J., and EmeksoN, J., concurred.