Merrill v. State

O.H. Merrill and Sam House and one Kirk Dearmin were jointly informed against for the crime of conjoint robbery, and upon their trial were found guilty of conjoint robbery, and their punishment was fixed at imprisonment in the penitentiary for a term of five years. After motions for new trial and in arrest of judgment had been overruled, the court rendered judgment and sentenced each defendant to serve a term of five years in the penitentiary. The judgment and sentence was entered on the 15th day of May, 1913. The record shows that on the 8th day of November, 1913, the plaintiffs in error filed a motion for new trial on the ground that certain papers had been lost from the files, and that said motion was overruled on the 20th day of January, 1914. An appeal from the order overruling the motion for a new trial was attempted to be taken by filing in this court on June 19, 1914, what purported to be a case-made, which contains a transcript of the testimony taken upon the supplemental motion for a new trial.

The Attorney General has filed a motion to dismiss the appeal upon the grounds that said appeal is wholly unauthorized. Under the provisions of our Criminal Code, the appeal must be from the judgment and sentence. Section 5988, Rev. Laws 1910.

There is no statute authorizing an appeal from an order denying a motion for a new trial, except as instant to the appeal from a judgment of conviction. Parker v. State, 10 Okla. Crim. 541,139 P. 708.

The appeal from the order overruling the defendant's supplemental motion for a new trial should therefore be dismissed.

The purported appeal is hereby dismissed, and the case remanded, with direction to the trial court to carry into execution the original judgment.

FURMAN and ARMSTRONG, JJ., concur.