(Syllabus by the Court.)

APPEAL — Case-Made — Service — Record Showing. The record must show that the case-made was prepared and served within the time fixed by the court for serving the same. A statement in the record that the case-made was served, but which does not show affirmatively the date of service and that such date was within the time allowed by the trial court, such statement will be insufficient.

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Appeal from District Court, McCurtain County; D.A. Richardson, Judge.

The defendant was convicted of the crime of rape and was sentenced to imprisonment in the penitentiary for life. He prosecuted an appeal. Affirmed.

J.E. Whitehead and C.M. Anderson, for appellant.

FURMAN, PRESIDING JUDGE. First. On the 3rd day of October, 1908, the defendant was sentenced to imprisonment for life for the crime of rape, and was granted 60 days in which to prepare and file a case-made. The record contains an agreement signed by the county attorney, stipulating that the case-made tendered him by the attorneys for the defendant was correct, but there is nothing in the record to show when the case-made was served on the county attorney, or that the stipulation was made prior to the expiration of the time within which the trial court had directed that the case-made must be prepared and served. Counsel for appellant insist that as a matter of fact the case-made was duly and legally served upon the county attorney of McCurtain county within the time prescribed by the court, and requests that he be permitted to make proof of this fact. Service of the case-made within the time prescribed by the court is an essential part of a case-made, and notice of such service must be incorporated in and made a part of such case-made and duly certified to by the trial judge when the case-made is approved by him. Service of the case-made cannot be proven in the manner now proposed by counsel for appellant. If lawyers will be more careful in the preparation of their case-mades they will save this court and themselves a great deal of trouble. The case-made must affirmatively show that it was prepared and served within the time granted by the trial court for this purpose. Any service of a case-made after the expiration of this time, or any agreement made by the county attorney, cannot be made to take the place of the statute. We therefore can not consider the case-made in this case.

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Second. The case-made not being properly before us, the only thing which we can consider upon this appeal is the transcript of the record. The indictment is sufficient. The charge of the court is an admirable exposition of the law, and the judgment is in all respects regular. As no error appears in the record, the judgment of the lower court is affirmed.

DOYLE, JUDGE, concurs.

N.B. Judge Richardson presided at the trial of this cause in the court below, and therefore took no part in the consideration or determination of this cause here.