THURMAN v. STATE

(Syllabus.)

1. Appeal and Error — Disposition of Cause Where Record Lost Without Possibility of Substitution. Where, in a proceeding in error properly instituted, it appears that the record in the case has been lost or destroyed without possibility of substitution, through no fault of the appellant or his counsel, but solely because of the action of the court officials or some accident or act of Providence for which no one is responsible, and without which record the errors complained of cannot be considered, the Criminal Court of Appeals has the power to order a new trial of the cause.

2. Same. Where a convicted defendant perfects his appeal to the court of last resort, and the record in the cause becomes lost or destroyed without fault on the part of the defendant or his counsel, and said record cannot be substituted, to prevent a miscarriage of justice or the deprivation of the legal right of appeal, the case will be reversed and remanded for further proceedings.

BAREFOOT, J.

Defendant, Charley Thurman, was charged in the county court of McCurtain county with the crime of selling one pint of whisky, was tried, convicted and sentenced to pay a fine of $50 and costs, and to serve a term of 30 days in the county jail, and has appealed.

A motion to dismiss the appeal has been filed by the Attorney General, for the reason that the case-made was not filed with the clerk of this court within the time prescribed by law. A response was filed to this motion, in which it is contended that extensions of time were given by the trial court, and that the case-made was filed within the time prescribed by said extensions, and within the time provided by law.

Upon examination, we find that the case-made filed in this cause has been lost. It was in the courtroom at the time oral arguments were presented, but the clerk has been unable to find it since that time. Effort has been made to secure a copy of the same, but neither the copy of defendant or of the county attorney of McCurtain county can be secured. For this reason we are unable to intelligently pass upon the question of the motion to dismiss the appeal. We are, therefore, giving the defendant the benefit of the doubt, and overruling the motion to dismiss the appeal.

Defendant has filed a brief, and no brief has been filed by the state; and while the brief of defendant sets out a purported statement of the facts, we are unable to review the whole of the evidence, and by reason of the fact that the case-made has been lost and no substitution can be made therefor, we have decided to reverse and remand this case to the county court of McCurtain county for further proceedings. Bailey v. United States, 3 Okla. Cr. 175, 104 P. 917, 25 L. R. A., N. S., 860, and cases cited therein. It is so ordered.

JONES, P. J., and DOYLE, J., concur.