Kizzar v. State

DAYENPORT, J. The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Marshall county, of manslaughter in the first degree, and his punishment fixed at 15 years in the state penitentiary. Judgment was rendered on the 10th day of December, 1928, and the record was lodged in this court on June 29, 1929. The record discloses that no notice of *346 appeal was served upon the county attorney or court clerk of the county in which the defendant was tried; that no summons in error has been issued and served, as provided by law, and the issuing and serving of the summons has not been waived by the state. Section 2809, C. O. S. 1921, provides: “An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the' district court.” These notices are prerequisite steps to conferring upon the appellate court jurisdiction to hear and determine an- appeal, and where the case-made fails to show that notice of appeal was served upon the court clerk and county attorney, or that summons in error had been issued and served, this court is without jurisdiction to consider the case. Dobbs v. State, 5 Okla. Cr. 481, 114 Pac. 858, 115 Pac. 370; Gordon v. State, 40 Okla. Cr. 85, 267 Pac. 285. For the reasons assigned, the attempted appeal is dismissed. EDWARDS, P. J., and CHAPPELL, J., concur.