Ballentine v State

Ballentine v State
1928 OK CR 165
266 P. 1110
40 Okl.Cr. 69
Decided: 05/05/1928
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Dismissal Where Notices of Appeal or Summons in Error not Served or Waived.

Page 70

Appeal from District Court, Le Flore County; D.C. McCurtain, Judge.

Fred Ballentine was convicted of rape in the second degree, and he appeals. Appeal dismissed.

H.H. Thomas, for plaintiff in error.

Edwin Dabney, Atty. Gen., and J.H. Lawson, Asst. Atty. Gen., for the State.

EDWARDS, J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Le Flore county on a charge of rape in the second degree and sentenced to serve a term of one year in the state penitentiary.

No notices of appeal upon the court clerk and county attorney appear in the record, nor have any such notices been filed with the clerk of this court, nor was any service of summons in error ever made nor any waiver filed in this court. At the time judgment and sentence was entered, counsel for defendant gave oral notice in open court of his intention to appeal. It has been held many times by this court that, in order to give this court jurisdiction of an attempted appeal, the statutory requirements must be complied with. Shell v. State, 21 Okla. Cr. 130, 205 P. 192; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436.