Stumpf v. State , 6 Okla. Crim. 159 ( 1911 )

PER CURIAM.

Plaintiff in error was convicted in the county court of Oklahoma county on the 11th day of July, 1910, on a charge of selling intoxicating liquor, and on the 8th day of October thereafter was sentenced to .serve six months in the county jail, and pay a fine of '$500. From the date of judgment and sentence plaintiff in error was given 40 days to make and serve case-made. No time was fixed within which to file the appeal in this court. On the 17th day of November thereafter an additional order was made extending the time within which to make and serve case-madé for a period of 30 days' from the 17th day of November. On the'16th day'óf December thereafter another order was made extending the time within which to make and serve case-made 30 days from the 17th day of December. Neither of these orders made an extension of the time within which the appeal should be perfected in this court.

The Attorney General has filed the following motion to dismiss the appeal:

“First. Because there is- no judgment-of the court incorporated in the case-made . of conviction against this plaintiff in error from which an appeal may be taken. (See page 55 Record.) 'Second. Because the pretended caseAnade shows'that, if any judgment was rendered in this case, it was rendered on the 8th day of October, 1910, as plaintiff in error was sentenced on that date, and no: time was then given in which to' file case-made in the Criminal Court of Appeals. This being á conviction for a misdemeanor, the appeal must be. taken within 60 days after the judgment is rendered, unless the trial court extend the time not to exceed 60 days. There was no extension of time allowed and the notices of appeal (see Record pages 60 and 61) were not served on the county judge and county attorney until December 15, 1910, more than 60 days after the rendition of judgment, and the case-made was not filed in this court until January 16, 1911, long after the time for taking the appeal as allowed by section 6948, Snyder’s • Compiled Daws of Oklahoma 1909, .had expired.”

The grounds set forth in the second paragraph appear to be well taken. Section -6948 of Snyder’s Statutes contains the following: ' '

“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 days. In felony cases the appeal must b'e taken within six months after the judgmeht is rendered,'and a transcript in both felony and misdemeanor cases -must be filed as hereinafter directed.”

Under ■ this statute an appeal must be taken in this court within 60 days from the date of judgment by the trial-court, unless the time is'for good cause shown extended by the trial court. In this case the court extended the time within which to make and serve case-made, but made no order relative to the time within which the appeal should be perfected’. The court could not limit the time to less than 60 days within which to take the appeal, but could extend it for good cause shown, not to exceed 120 days. This' it was not askecl to do, and did not do.

Section 6951, Snyder’s Statutes, among other things, provides. that:

“ * * * party desiring to have any judgment or order of the district court (superior county court), or county court, or judge thereof, reversed by the Supreme Court (Criminal Court of Appeals), may make a case containing a statement of so much of the proceedings and .evidence or other matters in the action as may be necessary to present the errors complained of to the Supreme Court (Criminal Court of Appeals). The case so made, or copy thereof, shall within thirty days after the judgment or order is entered, be served upon the opposite party, or his attorney, who may, within three days thereafter, suggest amendments thereto in writing, and present the same to the party making the case, or his attorney. The case and amendments shall be submitted to the judge, who shall settle and sign the same and cause it to be attested by the clerk or county judge, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case. Such original case-made shall be filed with the petition in error. The exceptions stated in the case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken. The court or judge may, upon good cause shown, extend the time for making a case and the time within which the case may be served. * * * ”

These two provisions are in separate sections of the statute, neither making any reference to the other. This court has repeatedly held that these are plain mandatory provisions and must be complied with before this court acquires jurisdiction to review the judgment of the trial court on appeal. Plaintiff in error secured the order provided for in section 6951, but failed to secure that provided for in section 6948.

It is just as essential to have the order of the trial court extending the time within which to perfect the appeal as it is to have the time extended within which to make and serve case-made.

The motion of the Attorney General to dismiss on this ground is sustained. The appeal is accordingly, dismissed.