Vian v. State , 8 Okla. Crim. 588 ( 1913 )

The following motion for a rehearing has been filed in behalf of appellant:

"Comes now the above-named appellant, by his attorney, H. Jennings, and moves the court that a rehearing may be had in this matter, and for grounds for such motion says: First, that in the first paragraph of the findings of this court, made herein, there is set out the fact, as a reason for the dismissal of the appeal, `that the case-made was not served upon counsel for the state until more than sixty days after the date of sentence.' Whereas, at the time of the overruling of the motion, duly filed in the district court of Rogers county, the defendant was given ninety (90) days in which to file such case-made, ten (10) days were allowed for amendments, and five (5) days for settling the pleadings, as is evidenced by a certified copy of the judge's trial docket, attached hereto, marked `Exhibit A,' and made a part hereof, and that such case-made was filed and settled within the time so prescribed. Wherefore, appellant prays that he may be granted a rehearing in this matter.

"H. JENNINGS, Attorney for Appellant."

Attached to this motion, and made a part thereof, is a certified copy of the judge's trial docket referred to in the motion, which is as follows:

"We the Jury find the Deft Guilty — 7-3-12 Deft filed mo for new trial, 7-10-12 overruled Deft ex — Sentenced to Pen for 5 years at hard labor, sentence to commence July 2 1912 Bond fixed $3000 — Deft given 3 Days to make Bond. 90 — 10 5."

We are at utter loss to know why counsel filed such a motion as this, for the very record upon which he relies and which he attached to the motion contradicts the statement made in the motion. Counsel for appellant had more than fifteen days' notice of the motion to dismiss this appeal, and made no reply to it. Even if there was an error in the transcript of the record, it is too late now for counsel to make a correction and be heard to complain.

The motion for a rehearing is therefore denied, with directions to the trial court to reform the judgment, and require the confinement of appellant in the penitentiary for the period of five years from date of his reception therein. Mandate will issue at once.

ARMSTRONG, P.J., and DOYLE, J., concur.