(Syllabus.)

Appeal and Error — Appeal Dismissed Where Appeal Notices not Served. Where the written notices of appeal have not been served on the clerk of the court and the county attorney, as required by section 2809, C.O.S. 1921, this court does not acquire jurisdiction, and the appeal will be dismissed.

Appeal from District Court, McIntosh County; Harve L. Melton, Judge.

Henry Borden was convicted of the crime of assault with a deadly weapon, and he appeals. Appeal dismissed.

Roy White, for plaintiff in error.

Page 291

Edwin Dabney, Atty. Gen., and Smith C. Matson and J.H. Lawson, Asst. Attys. Gen., for the State.

CHAPPELL, J. The plaintiff in error was convicted in the district court of McIntosh county on a charge of assault with a dangerous weapon and sentenced by the court to serve one year in the state penitentiary. The verdict was returned on December 15, 1927. The motion for new trial was overruled, and judgment and sentence pronounced on December 21, 1927. The appeal was lodged in this court on the 21st day of June, 1928.

The state has filed a motion to dismiss the attempted appeal for the reason that no notice of appeal was served upon the clerk of the court and the county attorney, as required by section 2809, C.O.S. 1921. A careful examination of the record discloses that no notice of appeal was served on either the clerk of the court or the county attorney. This court has uniformly held that in such cases the court does not acquire jurisdiction of the appeal. Lucas v. State, 22 Okla. Cr. 301, 210 P. 1040; Merritt v. State, 35 Okla. Cr. 194, 249 P. 436; Lutke v. State, 37 Okla. Cr. 18, 255 P. 719.

For the reasons stated the motion of the Attorney General is sustained, and the appeal is hereby dismissed.

EDWARDS, P.J., and DAVENPORT, J., concur.