Opinion
No. A-2311.
Opinion Filed June 5, 1915.
(Syllabus by the Court.)
APPEAL — Notice — Failure to Serve — Dismissal. Under Proc. Crim. (sec. 5992, Rev. Laws 1910), notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal is jurisdictional, and where the record fails to show the service of such notice, the appeal will be dismissed.
Appeal from County Court, Cherokee County; E.C. McMichael, Judge.
Shelby Killebrew, convicted of a violation of the prohibitory law, appeals. Appeal dismissed.
J.D. Cox, for plaintiff in error.
S.P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and Henry M. Vance, Co. Atty., for the State.
On information charging that he did unlawfully transport one pint of whisky, the plaintiff in error Shelby Killebrew was convicted and sentenced to be confined in the county jail for 30 days and to pay a fine of $50. An appeal from this judgment was attempted to be taken by filing in this court on June 22, 1914, a petition in error with case-made.
The state has filed a motion to dismiss the appeal herein on the ground that no notices of appeal were ever given or served upon the county attorney and the clerk of the court as required by Proc. Crim. (sec. 5992, Rev. Laws 1910.)
It appears that the service of a copy of this motion was accepted on the 6th day of May, 1915, and no response has been filed. The statute provides:
"An appeal is taken by the service of a notice upon the clerk of the court where the judgment is entered stating that the appellant appeals from the judgment. If taken by the defendant a similar notice must be served upon the prosecuting attorney." (Section 5992, Rev. Laws 1910.)
Under this provision notice of appeal and proof thereof given and made within the time prescribed for perfecting an appeal is jurisdictional, and where the record fails to show the service of such notice the appeal will be dismissed.
It follows that the motion to dismiss must be sustained. It is therefore ordered that the attempted appeal herein be the same is hereby, dismissed.
FURMAN and ARMSTRONG, JJ., concur.