Ensley v. State

• Decision Date: 28 May 1910
• Citation: 109 P. 250,4 Okla.Crim. 49,1910 OK CR 143
• Parties: ENSLEY v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

109 P. 250

4 Okla.Crim. 49, 1910 OK CR 143

ENSLEY v. STATE.

Court of Criminal Appeals of Oklahoma

May 28, 1910

Syllabus by the Court.

Under section 6949 of Snyder's Comp. Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, actual knowledge on the part of the clerk and the prosecuting attorney that an appeal is intended does not dispense with the necessity of giving formal notice and making due proof thereof.

Under section 6949 of Snyder's Comp. Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, a written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by journal entry, is insufficient.

Generally wherever a statute requires notice to be served in a legal proceeding, a written notice, capable of legal service, of proof and return, and of being filed, is intended, and especially so where service of such notice and proof thereof are jurisdictional.

The word "service," when used with reference to summonses, writs, subpoenas, notices, and other legal processes, means the reading of the same to the person to be served, or the delivery to such person of the original or a copy thereof; and the expression "service of a notice," without qualification of any kind, means a personal service of a written notice.

In the county court notice of appeal may be served upon the county judge, or upon the clerk of the county court, if there be one. In the district court it must be served upon the district clerk.

The notice of appeal in criminal cases, provided for in section 6949 of Snyder's Comp. Laws Okl., is analogous to a citation or a summons in error, and is designed to take the place thereof.

The act of 1909 (section 6948 of Snyder's Comp. Laws Okl.) requiring appeals in misdemeanor cases to be taken within 60 days from the rendition of judgment, is applicable to an offense committed prior to its passage, where the defendant is not tried until after the act became effective.

Section 54. art. 5, of the Constitution of Oklahoma, providing that the repeal of a statute shall not "affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute," has no reference to changes in the law of procedure merely.

Under section 6949 of Snyder's Comp. Laws, notice of appeal and proof thereof, given and made within the time prescribed for perfecting an appeal, is jurisdictional in a criminal case and where the record fails to show the service of such notice, the appeal will be dismissed.

Appeal from Wagoner County Court; W. T. Drake, Judge.

Jake Ensley was convicted of violating the prohibition law, and his punishment was assessed at a fine of $100 and imprisonment in the county jail for a term of 60 days. From an order overruling a motion for a new trial and in arrest of judgment, he appeals. Appeal dismissed.

Robert F. Blair, for plaintiff in error.

Fred S Caldwell, for the State.

RICHARDSON J.

The state has filed a motion to dismiss the appeal herein on the ground that no notice thereof was served by plaintiff in error upon the county attorney and county judge, or in lieu of the county judge upon the clerk of the county court, as required by section 6949 of Snyder's Comp. Laws of Oklahoma.

To this motion plaintiff in error has filed a response, in which he asserts that he did give such notice in open court, in the presence of the county attorney, the county judge, and the clerk of the county court, on October 2, 1909, immediately after the court had pronounced sentence upon him. In proof of this our attention is directed to that portion of the case-made containing the journal entry of the judgment below which recites that the defendant prays an appeal to the Criminal Court of Appeals, that the same is allowed, and that time is given for making and serving a case-made, the suggestion of amendments thereto, and for settling and signing the same; also the affidavits of plaintiff in error's attorney, the clerk of the county court, the county judge, and the county attorney have been filed, in all of which it is stated that at the time sentence was pronounced upon plaintiff in error his attorney stood up in open court, and in the presence and hearing of the county attorney, the county judge, and the clerk of the county court gave oral notice of appeal in behalf of plaintiff in error. In other words, it is shown on the one hand, and admitted on the other, that oral notice of appeal was given to the proper officers in open court, but that no written notice was served upon any of them.

Plaintiff in error contends that such oral notice given in open court is within the letter and spirit of the statute, and is sufficient, and he urges us to review and overrule the former decisions of this court and of the Supreme Court of the territory of Oklahoma holding that the service of written notices of appeal is necessary. The statute under consideration reads as follows: "An appeal is taken by the service of a notice upon the clerk of the court where the judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the state, a similar notice must be served upon the defendant, if he can be found in the county; if not there, by posting up a notice three weeks in the office of the clerk of the district court."

Counsel for plaintiff in error urges with great zeal and force that, inasmuch as the statute in requiring service of notice of appeal omits the word "written," the word should not be read into the statute; that the sole object of the statutory provision is to have the county attorney and the trial court notified within the time allowed for perfecting the appeal that an appeal has been or will be taken; that this purpose is fully accomplished by an oral notice given in open court in the presence of those officers, and can be shown in no better way than by a recital of that fact in a proper journal entry; that when the case-made further shows the allowance of time for making and serving a case-made, the service thereof upon the county attorney within the time prescribed, the county attorney's agreement that it is true and correct and may be settled and signed as such, its proper certification by the judge, the filing of it in his office, and the approval and filing of a supersedeas bond, then it is shown that the county attorney and county judge were as fully apprised of the defendant's intention to appeal as they could possibly have been by any character or number of written notices to that effect; and that anything further is purely ceremonial, and is useless and senseless. Whether or not the statute in question is wise or useful, or prescribes only a mere idle ceremony, is a question for the determination of the lawmakers, and not for the courts. The Legislature is the sole judge of the necessity, wisdom, or expediency of any law within its power to enact. It is within its power to regulate the manner of taking appeals, and this statute was designed for that purpose. The only matter left for us to determine then is: What does the statute mean?

Our laws contain positive provisions in regard to the allowance of time for making and serving case-mades. An appeal which involves the consideration of the evidence and the rulings of the trial court upon the admission or rejection of evidence can be taken only by case-made or by transcript containing a bill of exceptions. The service of the case-made or bill of exceptions, notice of the time and place of settling and signing the same, or a waiver thereof, and the signing and settling are by express statutes made indispensable prerequisites to the taking of an appeal for the review of any question except such as may be presented on the record proper. Moreover, if the defendant would prevent the enforcement of the judgment against him pending the appeal the statute provides that he must give a supersedeas bond, and cause it to be approved and filed. In addition to these provisions, and separate and apart from them, the statute in express terms requires that notice of appeal must be given. Now, whether that notice may be written or oral, no one can contend that such knowledge of the matter as the judge may obtain from the defendant's request for time to make and serve a case-made, its presentation to him for settling and signing, the filing of it in his court, and from the approving and filing of the supersedeas bond, or such knowledge as the county attorney may receive from the service of the case-made upon him, is the notice which the statute contemplates and prescribes. If it were, then section 6949 is entirely superfluous; for the doing of all these other things necessary to an appeal, which imparts to the proper officers knowledge that an appeal is being contemplated, is already provided for by other mandatory sections of the statute. But these sections must be construed together. They are not contradictory or conflicting; and they must be so construed, if possible, as to give meaning and effect to every word, clause and sentence of each provision. We find that in the great majority of the states the requirements in this respect are practically the same. The case-made or bill of exceptions must be served, and it must be settled and signed; yet in nearly all of the states, notwithstanding the judge and prosecuting attorney actually know from these preliminary steps that an appeal is intended, still formal notice of appeal and proof thereof are required in criminal cases. A defendant in error in a civil suit knows by the service of the case-made upon him or his attorney that...