Summary
In Fleetwood v. State, 16 Okla. Cr. 675, 676, 181 P. 157, this court in the syllabus said that the section "providing that an appeal must be taken within 60 days from judgment, unless the time is extended by the trial court or the judge thereof is mandatory, and, where there was no extension, an appeal filed one day late would be dismissed."
Summary of this case from Davidson v. StateOpinion
No. A-3219.
Opinion Filed May 31, 1919.
Appeal from County Court, Sequoyah County; W.B. Wall, Judge.
Red Cloud Fleetwood and Grethel Priest were convicted of a violation of the prohibitory liquor law, and they appeal. Appeal dismissed, and cause remanded with directions.
McCombs McCombs, for plaintiffs in error.
S.P. Freeling, Atty. Gen., and W.C. Hall, Asst. Atty. Gen., for the State.
Plaintiffs in error, Red Cloud Fleetwood and Grethel Priest, were jointly tried and convicted on an information charging that they did unlawfully convey and transport six gallons of intoxicating liquor from a point named to another point in the town of Sallisaw, and were each sentenced to be confined in the county jail for 30 days and to pay a fine of $50. The judgment was rendered on the 10th day of October, 1917. An appeal was attempted to be taken by filing in this court on December 10, 1917, a petition in error with case-made.
The Attorney General has filed a motion to dismiss the appeal, which is as follows:
"The judgment in this case was rendered October 10, 1917. The appeal was filed in this court on the 10th day of December, 1917, which was 61 days after judgment was rendered. Section 5991, Revised Laws, provides that an appeal must be taken within 60 days from judgment, unless the time is extended by the trial court or judge thereof. There
( 180 P. 193.)
"The above statute is mandatory, and has received construction by this court in a dozen cases. Among them is State v. Gunter, 13 Okla. Cr. 83 [ 162 P. 231], in which the court said: `Procedure Criminal, was no extension in this case. Therefore the appeal was filed one day late.
The Attorney General, for respondent.
sec. 5991, Rev. Laws 1910, provides that: "In misdemeanor cases the appeal must be taken within sixty days after the judgment is rendered: Provided, however, that the trial court or judge may, for good cause shown, extend the time in which such appeal may be taken not exceeding sixty day." Held, that when an appeal in a misdemeanor case is not taken within the 60 days prescribed by the statute the record or case-made must affirmatively show that the trial court of judge thereof for good cause shown extended the time: otherwise, this court is without jurisdiction to review the judgment and such appeal will be dismissed.'"
An examination of the record discloses that the motion to dismiss is well founded and should be sustained. For the reasons stated therein, the appeal is dismissed, and the cause remanded to the trial court, with direction to cause its judgment and sentence to be carried into execution.