Smith v. State

Full title: FRANK SMITH v. STATE

Court: Criminal Court of Appeals of Oklahoma

Date published: Nov 12, 1921

201 P. 661 (Okla. Crim. App. 1921)

201 P. 661

Opinion

No. A-3732.

Opinion Filed November 12, 1921.

(Syllabus.)

Appeal and Error — Time for Appealing Felony Case — Procedure. In felony cases the appeal must be taken within six months after the judgment is rendered. Section 5991, Rev. Laws 1910. In such cases the appeal is taken by filing in this court a petition in error with case-made attached, or transcript of the record, together with proof of sevice of notices of appeal as required by statute, and when this is not done within the time prescribed by the statute, this court does not acquire jurisdiction of the appeal, and such an appeal will be dismissed.

Appeal from District Court, Le Flore County; E.F. Lester, Judge.

Frank Smith, was convicted of burglary, and he appeals. Appeal dismissed.

Neal Neal, for plaintiff in error.

The Attorney General and E.L. Fulton, Asst. Atty. Gen., for the State.

DOYLE, P.J.

Plaintiff in error, Frank Smith, was convicted of burglary in the second degree, and his punishment assessed at imprisonment in the penitentiary for the term of two years. In pursuance of the verdict the court rendered judgment on the 20th day of September, 1919. From the judgment an appeal was attempted to be taken by filing in this court on March 22, 1920, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal based upon the fact that said appeal was not taken within six months from the date on which the judgment was rendered.

Sec. 5991, Rev. Laws, provides:

"In felony cases the appeal must be taken within six months after the judgment is rendered."

It was two days too late. It has been uniformly held by this court, when an appeal is not taken within the time prescribed by statute, this court does not acquire jurisdiction of the appeal, and such appeal will be dismissed. Barks v. State, 11 Okla. Cr. 446, 147 P. 1055; Gordon v. State, 12 Okla. Cr. 103, 152 P. 142.

It follows that the motion to dismiss the appeal must be sustained.

It is therefore ordered that the purported appeal be and the same is hereby dismissed.

MATSON and BESSEY, JJ., concur.