Opinion
No. A-2304.
Opinion Filed February 25, 1918.
APPEAL AND ERROR — Proof of Service of Notice of Appeal — Jurisdiction. Where the state attempted to appeal from a judgment sustaining a demurrer to the indictment, and the record shows that no proof of service of notice of appeal was made within the time allowed by the statutes, the Criminal Court of Appeals does not acquire jurisdiction, and appeal will be dismissed.
Appeal from District Court, Wagoner County; R.P. de Graffenried, Judge.
J.E. McElroy was indicted for embezzlement. Demurrer to indictment sustained, and the State appeals. Appeal dismissed.
C.E. Castle, Co. Atty., S.P. Freeling, Atty Gen., and R. McMillan, Asst. Atty. Gen., for the State.
Joseph S. Dickey, Jr., Edward M. Gallaher, and Watts Molony, for defendant in error.
In this case J.E. McElroy, as county clerk of Wagoner county, was by the grand jury of said county indicted for embezzlement; to which indictment a demurrer was interposed by the defendant, and which demurrer was by the judgment of the district court sustained.
It appears that the state has attempted to appeal from said judgment. An examination of the record discloses that no proof of service was made of the notice of appeal required by law to be served upon the defendant. When this is not done within the time allowed by the statute, this court does not acquire jurisdiction of the appeal.
It follows that upon the record this court is without jurisdiction. The attempted appeal herein by the state is therefore dismissed.