DocketNumber： No. A-2248.
Citation Numbers： 145 P. 415, 11 Okla. Crim. 419, 1915 OK CR 28, 1915 Okla. Crim. App. LEXIS 30
Judges： Armstrong, Furman
Filed Date： 3/6/1915
Status： Precedential
Modified Date： 11/13/2024
The plaintiff in error, Earl R. Horine, was convicted at the October, 1913, term of the district court of Adair county on a charge of embezzlement, and his punishment fixed at imprisonment in the state penitentiary for a term of five years. Judgment was pronounced on the 4th day of October, 1913. The appeal was filed in this court on the 13th day of April, 1914. No summons in error was ever issued and no praecipe therefor was ever filed by counsel for plaintiff in error. No waiver of summons in error by the Attorney General was ever filed. No notices of appeal were served as provided by law.
The Attorney General has filed a motion to dismiss the appeal on the ground that no summons in error had been issued; that the same had not been waived by the Attorney General; and that no notices of appeal were served as provided by law. The response filed on behalf of plaintiff in error admits *420 the correctness of the statements contained in the motion of the Attorney General, but contends that these omissions were not fatal. We have held in many cases, and to the contrary in none, that the failure to file proof of the service of notice of appeal, or waiver of summons in error, or the issuance and service of same, is fatal to the jurisdiction of this court. Unless one of these acts is done as provided by law, this court acquires no jurisdiction over the subject-matter and has jurisdiction only to dismiss the appeal. Neither of these acts having been done in this case, the court has no alternative except to- sustain the motion of the Attorney General to dismiss the appeal.
The motion is sustained and the appeal is dismissed. The trial court is directed to enforce the judgment and sentence imposed.