Silva v. State

1910 OK CR 24, 106 P. 556, 3 Okla. Crim. 417, 1910 Okla. Crim. App. LEXIS 168

• Court: Court of Criminal Appeals of Oklahoma
• Decided: January 25, 1910
• Docket: No. A-81.
• Status: Published

Opinion

PEE CUEIAM.

John Silva was tried and convicted in the county court of Pittsburg county of a violation of the prohibition law, and was on the 11th day of November, 1908, sentenced to. pay a fine of $50 and costs, and to be imprisoned for a period of 30 days in the county jail. On January 27, 190.9, there was filed with the clerk of this court a petition in error, with case-made attached. On December 27, 1909, Fred S. Caldwell, counsel to the Governor, and as attorney for the state, filed a motion to dismiss the appeal, which, omitting the formal parts, is as follows:

“Special Appearance and Motion to Dismiss. Comes now the state of Oklahoma by its attorney, Fred S. Caldwell, as counsel to the Governor, and' appearing specially herein for the purposes of this motion only, represents to'this honorable court as follows-: More than one year has elapsed since the rendition of the judgment from which plaintiff in error undertakes to prosecute this appeal, and no notices of appeal were ever served or filed as provided and required by Sec. 6949 of the 1909 Comp. Laws of Okla. Wherefore, the state of Oklahoma says that this court is without jurisdiction to entertain said appeal and that the same should be dismissed at plaintiff in error’s costs.”

The question presented by the motion in this case has been fully setttled. Upon'the authority of the case of Arispi v. Terri tory, 2 Okla. Cr. 79, 99 Pac. 1099, the motion to dismiss should be sustained.

It is therefore ordered that the purported appeal be, and the same is hereby, dismissed, and the cause remanded to the county court of Pittsburg county, with direction to enforce the judgment and sentence.