Opinion
No. A-13056.
September 20, 1961.
Appeal from the District Court of Pittsburg County, W.A. Lackey, Judge.
Frank D. Wilson was convicted of the offense of larceny of livestock after former conviction of a felony, and attempts to appeal. Appeal dismissed.
Fred W. Whetsel, McAlester, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
Frank D. Wilson was charged with the offense of larceny of livestock after former conviction of a felony in the District Court of Pittsburg County. On November 22, 1960, he was tried before a jury who returned a verdict of guilty and fixed his punishment at ten years in the State Penitentiary. A motion for new trial was overruled, and from the order overruling the motion the Defendant has attempted to appeal to this court. The Attorney General has filed a motion to dismiss the appeal for the reason that the record fails to contain a copy of the formal judgment and sentence.
We have carefully examined the record which consists of the information, testimony of witnesses, the verdict of the jury, motion for new trial, and the order overruling said motion. The record is silent as to whether a formal judgment and sentence was ever entered against the Defendant. An unbroken line of cases have uniformly held this omission to be jurisdictional. The only case to the contrary was Helms v. State, 14 Okla. Cr. 384, 171 P. 340, which was expressly overruled in the most recent decision by this court, Smith v. State, Okla. Cr. 362 P.2d 113, 114. In the Smith case, supra, the court speaking through the person of Judge John A. Brett stated the law applicable concisely as follows:
"This record cannot be considered, even as a transcript, since the casemade does not contain a formal judgment and sentence. It has been repeatedly held that this court does not acquire jurisdiction in an appeal by transcript where transcript or casemade contains no copy of the judgment of the trial court, and under such conditions the appeal will be dismissed."
For cases of like import see: McLellan v. State, 2 Okla. Cr. 633, 103 P. 876; Dansby v. State, 7 Okla. Cr. 496, 124 P. 328; Harjoe v. State, 14 Okla. Cr. 187, 169 P. 659; Mitchell v. State, 17 Okla. Cr. 513, 190 P. 268; Mobbs v. State, 18 Okla. Cr. 308, 194 P. 450.
In accordance with the prior decisions of this court, this appeal is dismissed.
NIX, P.J., and BRETT, J., concur.