Dobbs v. State

• Decision Date: 21 March 1911
• Citation: 114 P. 358,5 Okla.Crim. 475,1911 OK CR 101
• Parties: DOBBS v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

114 P. 358

5 Okla.Crim. 475, 1911 OK CR 101

DOBBS v. STATE.

Court of Criminal Appeals of Oklahoma

March 21, 1911

Syllabus by the Court.

(a) A judge pro tempore may fix the time within which a case-made may be prepared and served; but after he has fixed such time he cannot extend the time for preparing and serving such case-made.

(b) If a judge pro tempore has tried a case, and has fixed the time within which a case-made may be prepared and served, and it is desired to secure an extension of time to prepare and serve such case-made, such extension of time may be granted by the regular judge of the district in which the case was tried, or it may be granted by any judge who may be presiding in said court; but, if granted by the judge presiding in said court, the record must show that court was actually in session at the time that the extension was granted by the court.

(c) If the time fixed has expired within which a case-made may be prepared and served, no judge has power to extend such time.

(d) Under section 6077, Snyder's Comp. Laws of Oklahoma 1909 where a transcript of the record or case-made has been filed in this court in due time, and by proper motion it is made to appear that any matter is of record in the court from which the appeal is taken, touching the cause appealed or any evidence heard on the trial of said cause, or that any statement or certificate, or motion or other matter, is omitted from such record or case-made, or are insufficiently stated therein, this court will allow the appellant a reasonable time within which to prepare such omitted parts of the transcript of the record or case-made under the direction of the trial judge, and file such corrections in this court and when so filed such corrections or added parts will have the same force and effect as though they had been originally incorporated in the record or case-made when first filed in this court.

(e) Our statute provides for two methods of prosecuting an appeal viz., upon the transcript of the record, accompanied by a case-made, or upon a transcript of the record alone. If the first method is pursued, and for any reason the case-made is fatally defective, the appeal will be considered upon the transcript of the record alone. But if the transcript of the record is not properly certified to by the clerk of the court, the appeal will be dismissed.

Appeal from District Court, Roger Mills County; James R. Tolbert Judge.

James W. Dobbs was convicted of manslaughter in the first degree, and he appeals. Dismissed.

R. B. Forrest and John B. Harrison, for appellant.

Smith C. Matson, Asst. Atty. Gen., Charles M. Thacker, and Claude Weaver, for the State.

FURMAN P.J.

Appellant was found guilty of the crime of manslaughter in the first degree in the district court of Roger Mills county, Okl., and his punishment was assessed at imprisonment in the penitentiary for a period of 15 years.

Hon. G. A. Brown, the regular judge of the Eighteenth judicial district, who presides over the district court of Roger Mills county, was disqualified to try this cause, and the Hon. James R. Tolbert, judge of the Seventeenth judicial district of the state of Oklahoma, was regularly assigned by the Chief Justice of the Supreme Court to try this cause.

Judgment was pronounced against the defendant on the 21st day of September, 1909, and the defendant was allowed by the court 30 days within which to make and serve a case-made. Subsequently to this time various orders were made by Judge Tolbert, granting the defendant extensions of time within which to prepare and serve a case-made. The record shows that the case-made was served on the 24th day of July, 1909. Under our system a special judge who presides at the trial of a case may fix the time within which a case-made may be prepared and served, but after he vacates the bench and loses control over the docket, he has no power to grant an order extending such time. This has never been an open question in Oklahoma. For a full citation and discussion of all the authorities on this question, see Rasberry v. State, 4 Okl. Cr. 613, 103 P. 865, 112 P. 759. If additional time is desired for preparing and serving a case-made, application should be made either to the regular judge of the district court or to such judge who is then presiding in said district, and is therefore the court; or the appellant may file a transcript of the record in this court within the time originally granted, and, having thus perfected his appeal and this court having acquired jurisdiction of the cause, we have power, under section 6077 of Snyder's Comp. Laws of Okla. 1909, to grant the defendant such time as he may require to perfect and serve his case-made. This course was adopted by counsel for appellant in the case of Hunter v. State, 3 Okl. Cr. 535, 107 P. 444. For a full discussion of this question see John Farmer v. State (decided at the January term of this court) 114 P. 753.

Counsel for the appellant attempted to explain their failure to file a case-made in this court at an earlier date by the following affidavits:

"State of Oklahoma, County of Canadian.

"R. B. Forrest, being first sworn according to law, on his oath states that he has been one of the attorneys of the defendant from the time of his arrest under the charge for which he was indicted in the above-entitled cause, at all times during the progress and history of said

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