Steen v. State , 5 Okla. Crim. 295 ( 1911 )

Defendant was tried before Hon. Thomas D. Lyon, a special judge. Judgment was pronounced against him on the 27th day of February, 1909. Subsequently, on the 27th day of April, 1909, said Thomas D. Lyon, acting as special judge, granted an extension of 20 days in which the defendant might prepare and serve a case-made. A judge pro tempore is authorized by our statute to fix the time within which a case-made may be prepared and served, but after he has fixed such time and has vacated the bench as such judge pro tempore he cannot extend the time for preparing and serving such case-made. See Rasberry v. State,4 Okla. Cr. 616, 103 P. 865, 112 P. 759. If the defendant had desired an extension of time within which to make and serve a case-made, he should have applied to the regular judge of the county court for such extension. The order granting the defendant an extension of time within which he might make and serve a case-made was therefore void.

The record in this case fails to show that a case-made was ever prepared and served upon the county attorney, but does contain the following: "The foregoing case-made is true and correct. [Signed] M.A. Breckinridge, County Attorney of Tulsa County, Oklahoma." If this statement had been filed within the time originally allowed by the judge pro tempore within which the case-made should be prepared and served, it might have been construed as a waiver of service on the part of the county attorney; but, as it was filed after the time originally granted by the special judge had expired, it is of no avail. We cannot do otherwise than strike the case-made in this case from the record. The transcript of the record is not properly certified to by the clerk of the county court of Tulsa county as a transcript of the record.

We therefore have no option to do otherwise than dismiss this appeal.