Dunn v. State
| Decision Date | 06 April 1921 |
| Docket Number | A-3923. |
| Citation | 196 P. 739,18 Okla.Crim. 493 |
| Parties | DUNN v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
An appeal in a felony case must be taken within six months from the time the judgment is rendered, as distinguished from the time of the recording of the judgment by the clerk. As between the parties, the validity of the judgment cannot be avoided because the clerk failed to perform his ministerial duties in making up the record; and where, through the negligence or omission of the clerk, the judgment record is defective or incomplete, the court may at any time, upon a proper showing, require the clerk to make the record conform to the facts nunc pro tunc.
The rule announced in the case of Schriebar v. State, 6 Okl Cr. 119, 116 P. 348, that the time in which an appeal may be taken runs from the entry of judgment, as distinguished from the time of the rendition of judgment, as applied to cases of the character shown by this record, will not be followed by this court, and to that extent the doctrine announced in the Schriebar Case is overruled.
Applications for nunc pro tunc orders, and orders nunc pro tunc are not proceedings separate and distinct from the original actions but are merely auxiliary to some action pending, and when pending on appeal they should be incorporated in the original appeal.
A criminal case is pending, in the sense that a court may correct its records, until the judgment is fully satisfied.
In a criminal case, every defendant has a constitutional right of appeal; but the statutes regulate the time and manner of exercising that right. The defendant may lose his right of appeal by waiver or estoppel or by failure to perfect or prosecute his appeal, and, once having waived or forfeited that right, he cannot have it revived out of time by resisting an order directing an entry of judgment nunc pro tunc.
Appeal from District Court, Tulsa County; Redmond S. Cole, Judge.
George Dunn was convicted of larceny of an automobile, and he appeals. Appeal dismissed.
D. B Crewson, of Tulsa, and R. M. Dick, of Okmulgee, for plaintiff in error.
S. P. Freeling, Atty. Gen., and W. C. Hall, Asst. Atty. Gen., for the State.
On the 30th day of April, 1917, the defendant filed his motion for a new trial, which was on the same day heard and overruled, and the defendant was sentenced to imprisonment in the state penitentiary for a term of two years. Defendant gave notice of an appeal, and was given 90 days to make and serve a case-made. The amount of the supersedeas bond was fixed at $2,500, to be approved by the clerk. Later the time for making and certifying the case-made was extended for a further period of 60 days, the supersedeas bond was made and approved by the clerk, and the defendant was given his liberty.
The appeal was not perfected by filing the case-made within the time allowed by the court, nor by transcript within the time provided by law. On the 25th day of January, 1921, the defendant's bond was forfeited, and later the defendant was apprehended, and the county attorney, preparatory to the execution of the sentence, made application to the court for a nunc pro tunc order for a judgment entry in accordance with the verdict and sentence of the court. This motion was resisted by the defendant, who made a motion to strike the state's motion from the files, which motion to strike was by the court heard and overruled. All parties being present, the motion for a nunc pro tunc order was heard and proof submitted upon the question as to whether in fact a judgment and sentence had been rendered, although no formal entry had been made by the clerk, though the clerk's minutes and other portions of the record indicated that a judgment and sentence had in fact been rendered. The motion for a nunc pro tunc order was sustained February 7, 1921, and judgment nunc pro tunc, as of April 30, 1917, ordered entered accordingly.
On February 9, 1921, the defendant filed a motion in arrest of judgment, which was by the court overruled. On the same day the defendant filed a motion for a new trial, which was likewise overruled. The defendant then gave notice of an appeal from the judgment entered nunc pro tunc, and asked time to prepare and serve a case-made, which was by the court denied. On February 21, 1921, defendant filed in this court a transcript of the record below, with a petition in error attached, and on February 21, 1921, defendant also filed in this court a motion asking this court to fix an appeal bond, pending further proceedings on appeal. By agreement of parties, this motion was heard and is now before this court for consideration.
In order for this court to pass upon the question of the appeal bond, as prayed for in the motion filed in this court, it becomes necessary to determine the defendant's right to appeal at this time from the judgment and sentence nunc pro tunc. The Constitution of this state gives to every defendant in a criminal case the right of appeal. The statutes provide the method and time of exercising this right. Section 5988, R. L. 1910, provides:
"An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right, from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed."
Section 5991 provides for the time in which this appeal shall be taken, as follows:
The appeal is from the judgment against the defendant, and in a felony case must be taken within six months from the time the judgment is rendered. It will be noted that the word "rendered" is used in the statute, but the defendant in this case contends that the statute contemplates that the time in which an appeal may be taken should be reckoned from the time the judgment was entered nunc pro tunc.
It is not for this court to construe into a plain, unambiguous statute provisions not therein expressed, for the reason that, in the view of the court, the statute should contain other or modifying provisions. The Legislature could as easily have provided that the time should run from the day the clerk made the judgment entry, but it did not do so. The clerk's record is the best evidence of the judgment and sentence, but if this record is incomplete, but enough appears to indicate the scope of the judgment rendered, the omissions can be supplied by appropriate orders of the trial court, or by application to this court. The validity of the judgment cannot be avoided as between the parties because the clerk failed to perform his ministerial duties in making up the records.
In ordinary legal parlance judgment and sentence have the same meaning, and where, through the negligence or omission of the clerk, the judgment record is defective or incomplete, the court may, upon a proper showing, require the clerk to make the record conform to the facts. Petition of Breeding, 75 Okl. 169, 182 P. 899;
Ex parte Lyda Howland, 3 Okl. Cr. 142, 104 P. 927, Ann. Cas. 1912A, 840; 17 C.J. 32, title, "What Constitutes Final Judgment"; 8 R. C. L. 246; 16 C.J. 1266.
The court decisions from other states, holding that the time for taking an appeal dates from the entry of judgment, are due to the fact that in many states the statutes provide that the time shall run from the date of the entry and recording of the judgment. For a discussion of these cases see notes and annotations to In re Weber, 28 L. R. A. 621. But these decisions are entitled to no weight where the statutes provide, as they...
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