Smith v State

Smith v State
1923 OK CR 214
217 P. 502
24 Okl.Cr. 188
Decided: 07/31/1923
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Dismissal of Appeal Where Accused Accepts Parole.

Appeal from District Court, Texas County; Arthur G. Sutton, Judge.

Page 189

Wilbur Smith was convicted of assault with intent to kill, and he appeals. Appeal dismissed.

F. Hiner Dale and Harris & Armstrong, for plaintiff in error.

The Attorney General and N.W. Gore, Asst. Atty. Gen., for the State.

DOYLE, J. The plaintiff in error, Wilbur Smith, was tried and convicted on an information which charged that in Texas county, on or about the 8th day of March, 1922, he with intent to kill did shoot at one Horatio Herne, with a pistol, and in accordance with the verdict of the jury he was on June 3, 1922, sentenced to be confined in the State Reformatory at Granite, for the term of 18 months. From the judgment an appeal was taken by filing in this court on July 27, 1922, a petition in error with case-made.

His counsel of record have moved to dismiss the appeal on the ground and for the reason that plaintiff in error has been granted a parole and has accepted the same. The uniform holding of this court is that when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a parole and the same is granted and accepted by the plaintiff in error, and that fact is brought to the attention of this court, the appeal will be dismissed as having been abandoned. Brown v. State, 16 Okla. Cr. 505, 184 P. 912; Cowley v. State, 11 Okla. Cr. 561, 149 P. 924.