People v. Fennel

Boreman, J.: The appellant was convicted of murder in the second district court, and sentenced to imprisonment in tlie penitentiary for a term of years. From that judgment he "brings the case to this court. The prosecution filed two motions to dismiss the appeal, the first of which alone it will be necessary for us 'to consider. The ground of the first motion is that no appeal was taken as required by law, as it does not appear from the transcript that any [113] notice of appeal was ever served upon tbe attorney for tbe people. Tbe criminal practice act, Laws of Utab, 1878, p. 139, provides as follows: “Sec. 363. An appeal is taken by filing witb tbe clerk of tlio court in which tbe judgment or order appealed from is entered or filed, a notice stating tbe appeal from tbe same, and serving a copy thereof upon tbe attorney of tbe adverse party.” Two things are required by this section to be done before an appeal is perfected, namely: 1st. Tbe filing of the notice of appeal with the clerk of tbe court below, and 2d. Tbe serving a copy of such notice upon tbe attorney of tbe adverse party. Tbe transcript shows that notice of tbe appeal was filed witb the clerk of tbe court below, but fails to show any service of tbe notice upon tbe attorney for tbe people. Tbe record should show this. It is now offered to supply in this court tbe proof of this service. We cannot receive such proof. This court can only learn from tbe record whether an appeal has been taken or not. Nothing outside tbe record can be shown in this court to supply tbe defect. This same question was before this court on a former occasion, in the case of The People, etc., v. Gough, 2 Utah, 69, and it was then held that tbe failure of tbe transcript to show tbe service of tbe notice of appeal upon tbe attorney of the people was fatal, and that tbe proof of such servicecouldnot.be supplied in this court. We see no reason to change that ruling. The motion to dismiss tbe appeal is sustained. Zane, C. J., concurred.