Lowrey v. State, A-12211
| Decision Date | 23 November 1955 |
| Docket Number | No. A-12211,A-12211 |
| Citation | 290 P.2d 785 |
| Parties | B. LOWREY, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Where an accused is represented by counsel of his own choosing, is tried and convicted and his counsel fails to give notice in open court of his intention to appeal to the Criminal Court of Appeals and file a motion for new trial, this court can not acquire jurisdiction to consider the appeal on the merits of the case. 22 O.S.1951 § 1055.
2. Where petition in error and transcript are filed within the statutory time of six months in a felony case, this court will consider the appeal by transcript. 22 O.S.1951 § 1060.
3. In an appeal by transcript, errors which require an examination of the evidence taken at the trial will not be considered on appeal.
4. On appeal, burden is upon the appellant to establish both error and prejudice resulting therefrom.
5. Where on appeal by transcript an examination of such record discloses that the trial court had jurisdiction of the person of the accused, and of the crime charged, and no fundamental error is presented and/or is apparent, the judgment appealed from will be affirmed.
Appeal from the District Court of Tulsa County; Lewis C. Johnson, Judge.
B. Lowrey was convicted of the crime of lewd molestation of a minor, sentenced to five years in the penitentiary, and appeals. Affirmed.
B. Lowrey, McAlester, pro se.
Mac Q. Williamson, Atty. Gen., James P. Garrett, Asst. Atty. Gen., J. Howard Edmondson, County Atty., and Robert D. Simms, Asst. County Atty., Tulsa County, Tulsa, for defendant in error.
The plaintiff in error, B. Lowrey, was charged by information filed in the district court of Tulsa County with the crime of lewd molestation of a minor, was tried before a jury, convicted, and his punishment fixed at five years confinement in the State Penitentiary.
Application was made to this court by the defendant to require Tulsa County to furnish, free of cost, a casemade to enable defendant to perfect an appeal. On hearing of the application, it was developed that District Judge Lewis C. Johnson had denied an appeal forma pauperis for the reason that no motion for new trial was ever filed, and no notice of intention to appeal was ever given, as required by Tit. 22 O.S.1951 § 1055. It further appeared that at trial defendant was represented by an attorney of his own choosing, and also that defendant's wife was regularly employed. Nevertheless, we did require Tulsa County to furnish this court with a transcript containing a copy of the information, all pleadings, minutes of the court, the court's instructions to the jury, the verdict, judgment and sentence, etc., but did not require a transcript of the evidence, as that could not be considered by reason of failure of counsel for the defendant to in open court give notice of appeal, and file a motion for new trial and give the lower court opportunity to consider any...
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Detar v. State
...use of the term "lewd molestation" in published opinions can be traced back as early as 1955. Lowrey v. State , 1955 OK CR 131, ¶¶ 1, 5, 290 P.2d 785 (describing a defendant's crime as lewd molestation, but providing no details as to exactly what the conduct was). Since then, the term conti......