DENNEY v. STATE

(Syllabus.)

1. Appeal and Error — Failure to File Appeal Within Time Allowed by Law Fatal to Appeal. A failure to file the appeal in the appellate court within the time allowed by law is fatal to the appeal, and the appellate court has no discretion to hear and determine appeals on the merits when they are not taken within the time prescribed by statute.

2. Same — Appeal Dismissed Where Petition and Case-Made not Filed Within Time. Where petition in error and case-made have not been filed within the time prescribed by law, the Criminal Court of Appeals does not acquire jurisdiction and appeal will be dismissed on motion.

3. Same. Criminal Court of Appeals is reluctant to dismiss an appeal, but must do so when it has not acquired jurisdiction.

BAREFOOT, P. J.

William Truman Denney was charged in the county court of Craig county with the offense of "driving a motor vehicle while under the influence of intoxicating liquor"; was tried, convicted, and a fine of $50 and 30 days in jail assessed by the jury.

No appearance was made by defendant at the time this case was set for oral argument, and no brief has been filed in his behalf. On November 21, 1947, a motion was filed by the Attorney General to dismiss the appeal for the reason that "the attempted appeal was not filed in this court until 122 days after the date of said sentence." No response has been filed to this motion, which was served on counsel for defendant by mailing him a copy thereof on November 19, 1947.

An examination of the record sustains the facts set forth in the motion of the state to dismiss the appeal. 22 O. S. 1941, § 1054; Clasby v. State, 87 Okla. Cr. 173, 196 P.2d 541; Loving v. State, 87 Okla. Cr. 150, 196 P.2d 519; Butler v. State, 83 Okla. Cr. 105, 173 P.2d 453; Jackson v. State, 86 Okla. Cr. 6, 188 P.2d 878; Davidson v. State, 82 Okla. Cr. 152, 167 P.2d 381.

For the reasons above stated, the motion to dismiss the appeal is sustained, and the case remanded to the trial court, with directions to enforce its judgment and sentence.

JONES and BRETT, JJ., concur.