Opinion
No. A-7808.
Opinion Filed August 23, 1930.
Criminal prosecution by the State of Oklahoma against A.J. Welch, on a charge of adultery. From an order setting aside the information and dismissing prosecution, the State appeals. Appeal dismissed.
George M. Callihan, Co. Atty., Harlan T. Deupree, Asst. Co. Atty., and Smith C. Matson, Asst. Atty. Gen., for the State.
A.J. Welch, pro se.
The defendant in error was charged in the district court of Oklahoma county with the crime of adultery. He filed a motion to dismiss in the nature of a motion to set aside the information. This motion was sustained and the case dismissed. The state has attempted to appeal by a transcript. Where an appeal is by transcript, there is brought before this court only the record proper, which is defined by section 2777, Comp. St. 1921, as follows:
"When judgment upon a conviction is rendered, the clerk must enter the same upon the minutes, stating briefly the offense for which the conviction has been had, and must immediately annex together and file the following papers, which constitute a record of the action.
"First. The indictment and a copy of the minutes of the plea or demurrer.
"Second. A copy of the minutes of the trial.
"Third. The charges given or refused, and the indorsements, if any, thereon; and,
"Fourth. A copy of the judgment."
Where it is sought to have this court review any question which does not appear on the face of the record proper, it is necessary that the appeal be by case-made. Hodges v. State, 38 Okla. Cr. 259, 259 P. 1056; Preston v. State, 40 Okla. Cr. 403, 269 P. 507.
The attempted appeal is dismissed.