Opinion
No. A-6699.
Opinion Filed November 17, 1928.
Appeal from Superior Court, Okmulgee County; J.H. Swan, Judge.
W.T. Bowling and another were indicted on a charge of criminal conspiracy, and, from judgment sustaining a demurrer to the indictment, the State appeals. Appeal dismissed.
A.N. Boatman, Co. Atty., for the State.
L.A. Wallace, for defendants in error.
In this case the state attempted to appeal from the judgment of the superior court of Okmulgee county, Henryetta division, sustaining the defendant's demurrer to an indictment charging them with the alleged offense of criminal conspiracy.
The defendants in error filed a motion to dismiss on the grounds that said pretended appeal was filed in this court more than 60 days from the date of said judgment, and no order was made by the trial court extending the time within which to appeal, and therefore this court has no jurisdiction to determine the questions involved in said pretended appeal, and that the trial court, at the time of sustaining the demurrer to the indictment, did not direct a resubmission of the case, or direct that a new information be filed, and said judgment is a complete bar to any further prosecution against the defendants in error for said alleged offense, and therefore the question raised by this intended appeal as to the sufficiency of said indictment has become a moot question.
The uniform holding of this court is that the appeal must be filed within the time fixed by the statute, otherwise this court acquires no jurisdiction of the appeal. Bandy v. State, 5 Okla. Cr. 397, 114 P. 341; Hamlin v. State, 12 Okla. Cr. 321, 155 P. 904; Danna v. State, 16 Okla. Cr. 114, 180 P. 869; Story v. State, 17 Okla. Cr. 237, 187 P. 508.
The Attorney General concedes the motion to dismiss is well taken. The attempted appeal herein by the state is therefore dismissed.