Opinion
No. A-9216.
May 10, 1937.
(Syllabus.)
1. Appeal and Error — Right of Appellant to Have Appeal Dismissed on His Own Motion. An appeal to this court may be taken by a defendant as a constitutional right from any judgment rendered against him in a court of record. The right being a personal one to plaintiff in error, he may waive the same and have the appeal dismissed on his own motion.
2. Same — Effect of Dismissal on Motion of Appellant. Where plaintiff in error appeals from a judgment of conviction, files a formal dismissal of his appeal and the appeal is dismissed, the judgment and sentence of the trial court is left in full force and effect.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Morris McDessey was convicted of attempted burglary in the first degree, and he appeals. Appeal dismissed.
James C. Mathers and Wm. H. Lewis, for plaintiff in error.
Lewis R. Morris, Co. Atty., and John F. Eberle, Asst. Co. Atty., for the State.
Plaintiff in error, Morris McDessey, was tried and convicted in the district court of Oklahoma county upon an information charging that on the 27th day of February, 1936, in Oklahoma county he committed the crime of attempted burglary in the first degree. On April 20, 1936, the court rendered judgment and he was sentenced to confinement in the state penitentiary at McAlester for the term of five years and the costs. From the judgment, an appeal was duly perfected by filing in this court on October 19, 1936, a petition in error with case-made attached.
Subsequent to the submission of the cause on the record, the plaintiff in error filed his duly verified motion in this court to dismiss his appeal.
The Constitution and laws of this state give to every citizen convicted of crime in the courts of this state the right to appeal from any judgment rendered against him in a court of record. It is a privilege granted by the law to persons convicted of crime which they may exercise at their option.
When an appeal has been taken, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Huber v. State, 13 Okla. Cr. 209, 163 P. 329; Hancock v. State, 57 Okla. Cr. 329, 48 P.2d 348.
In the instant case, there is no reason made to appear why the dismissal should not be ordered in compliance with the motion of plaintiff in error.
It is therefore adjudged and ordered that the appeal herein be dismissed and the case remanded to the district court of Oklahoma county. The clerk of said court is directed to spread the mandate and to issue forthwith to the sheriff of said county commitment in accordance with the judgment of said court pronounced on the verdict of the jury.
DAVENPORT, P. J., and BAREFOOT, J., concur.