Roots v State

Roots v State
1945 OK CR 8
155 P.2d 258
79 Okl.Cr. 384
Decided: 01/17/1945
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Appellant's Right to Dismiss Appeal. An appellant has the right to dismiss his appeal whenever this can be done without prejudice to the rights of the state and the administration of justice.

2. Same. The right of appeal is a privilege granted by the laws of the state to persons who are convicted of crime. The option of exercising and discontinuing the same, when the statute and rules of the court are complied with, ordinarily rests in the discretion of the party appealing.

3. Same-Where Youth Was Given Life Sentence for Murder Record Would Be Reviewed Before Ruling on Motion to Dismiss Appeal.

Page 385

In conviction for murder with sentence of life imprisonment assessed 17-year-old youth, Criminal Court of Appeals will review record for jurisdictional or palpable errors which might have deprived defendant of a fair trial before ruling on motion of counsel for defendant seeking dismissal of appeal.

4. Same-Motion to Dismiss Sustained. Record examined, and motion to dismiss appeal sustained and appeal ordered dismissed.

Appeal from District Court, Woods County; J. W. Bird, Judge.

Kenneth George Roots was convicted of murder, and he appealed and thereafter moved to dismiss the appeal. Motion sustained and appeal dismissed.

Mauntel & Spellman, of Alva, for plaintiff in error.

Randell S. Cobb, Atty. Gen., for defendant in error.

JONES, J. The defendant, Kenneth George Roots, was charged in the district court of Woods county with the crime of murder; was tried, convicted, and sentenced, to serve life imprisonment in the State Penitentiary, and has appealed.

This is one of the most tragic cases to be presented to this court. The defendant, a 17-year-old high school senior, shot and killed a 21-year-old boy, who was the brother of defendant's sweetheart, because of a statement made to him by the girl that her brother had raped her. The defendant was an honor student in school, a boy of excellent reputation. His family and the family of the deceased boy lived on neighboring farms near the small town of Capron, in Woods county. Up to the time of this tragedy, the two families had been cordial friends.

After the appeal had been lodged in this court and the case set for oral argument, the defendant, through his counsel, filed a written motion to dismiss the appeal, in

Page 386

which they stated that the defendant, since his incarceration in the State Penitentiary, had been a model prisoner and would soon be eligible for a parole. That if the cause were reversed, the defendant would remain in the county jail pending a new trial, and that in all probability he again would be sentenced to serve a long term in the penitentiary and would lose the good time which he had earned since being incarcerated in that institution.

Notwithstanding the motion presented by the defendant to dismiss his appeal, the court has read the voluminous record concerning this case. No person could read this record without being deeply moved because of the facts surrounding this tragic killing. The trial court stated at the time sentence was pronounced against the accused that he felt more badly in having to sentence the accused than in any case he had ever tried.

In the case of Huber v. State, 13 Okla. Cr. 209, 163 P. 329, it is stated:

"The right of appeal is a privilege granted by the laws of the state, to persons who are convicted of crime. The option of exercising and discontinuing the same, when the statute and rules of the court are complied with, ordinarily rests in the discretion of the party appealing."

See, also, Nash v. State, 13 Okla. Cr. 211, 163 P. 330; Caudill v. State, 9 Okla. Cr. 66, 130 P. 812.

The right of appeal is a privilege granted to one convicted of crime which he may exercise at his option. After an appeal is perfected, this court has uniformly permitted the defendant to dismiss his appeal at his election. Since the defendant and his counsel have filed a written request that this appeal be dismissed, it is the order of the court that the motion to dismiss the appeal be sustained and the appeal is accordingly dismissed.

Page 387