(Syllabus.)

Appeal and Error-Right of Appellant to Dismiss Appeal. The right of appeal is a privilege granted by the laws of the state to persons who are convicted of crime. The option of exercising or discontinuing the same, when the statutes and the rules of the court are complied with, ordinarily rests in the discretion of the party appealing.

Appeal from Court of Common Pleas, Oklahoma County; Carl Traub, Judge.

Oscar Davis and another were convicted of possessing one pint of whisky with the unlawful intent to sell the same, and they appeal, and counsel for accused and the state, appearing in open court, announced that the convictions were set aside and the prosecution dismissed. Appeal dismissed.

The plaintiffs in error were convicted in the common pleas court in and for Oklahoma county on a charge that in said county and state, on the 26th day of October, 1939, they did have the possession of one pint of whisky with the unlawful intent to sell the same, but the jury

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were unable to agree upon the punishment. Motion for new trial was duly filed and overruled on January 6, 1940, and the court sentenced "each defendant to serve 30 days in the county jail and to pay $50 fine and costs."

The record shows that when the court rendered judgment the defendants gave notice of their intention to appeal, and the court gave them 30 days to prepare and serve a case-made, three days to suggest amendments, same to be settled on three days' notice. On the same day each defendant filed a verified application for a transcript of the reporter's notes to be furnished at the expense of the county in accordance with the provision of section 3823, Sts. 1931, 20 O. S. 1941 § 111, which reads:

"Provided, however, that if, before a transcript of the notes is ordered on application of the defendant or his attorney, the defendant or his attorney, the defendant shall present to the judge his affidavit that he intends in good faith to take an appeal in the case and that such transcript is necessary to enable him to prosecute the appeal, and that the defendant has not the means to pay for the same, the court may, at its discretion, order the transcript made at the expense of the county."

Thereafter, on January 20, 1940, such application for a transcript of the testimony to be furnished to the defendants as poor persons was overruled.

On January 24th there was filed in this court, application for the transcript on the grounds as set forth in the trial court, reciting the proceedings had as above stated, and further reciting:

"This affiant would further show that at the time judgment was passed on him, towit, January 6, 1940, the court made its order granting him an extension of time of 30 days in which to make and serve case-made, which time will expire on or before February 5, 1940, unless extended by the trial court."

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On February 19th the application was presented to this court, at which time counsel for the state asked for time to file memorandum brief, opposing the granting of an order for said transcript, at which time it was agreed by the respective counsel that a further extension of time in which to prepare and serve a case-made should be granted by the trial court pending the determination of the application for said transcript, and counsel for the defendants was directed to file a petition in error with a duly certified transcript of the record proper.

On March 25th, a petition in error with transcript of the record was filed in this court.

On April 2d, counsel for the state filed a motion to dismiss, wherein it is stated:

"That on January 23, 1940, pursuant to an application of the attorney for both defendants said time was extended to March 4, 1940, to make, serve and file case-made in said case, in the Criminal Court of Appeals, and that at no time was an application made by either of the defendants to extend the time provided by statute for filing an appeal in this court beyond the 60 days."

On April 3d, a hearing was had on the motion to dismiss. Following the argument of counsel said motion was overruled. On April 12th an order granting further extension of time to prepare and serve a case-made and fixing the time for filing the same in this court was made in open court and order issued. It was further ordered that the application for a transcript of the testimony to be furnished at the cost of the county be assigned for hearing April 17th.

In the meantime an agreement by counsel for plaintiffs in error and the county attorney of Oklahoma county, in substance to the effect that the county attorney of Oklahoma county, with the permission of this court, will confess the defendants' supplemental motion for a new

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trial pending in the trial court, and file a dismissal of the prosecution, and asking that the order directing that a transcript of the testimony be furnished, be vacated, and it was so ordered.

Thereafter on September 3, 1941, the respective counsel, appearing in open court, announced that the judgments of conviction were set aside and the prosecution dismissed.

Wayne E. Wheeling, of Oklahoma City, for plaintiffs in error.

Mac Q. Williamson, Atty. Gen., Houston E. Hill, Asst. Atty. Gen., and Lewis R. Morris, Co. Atty., and Phil E. Daugherty, Asst. Co. Atty., both of Oklahoma City, for the State.

PER CURIAM. The right of appeal is granted by law, and is a right that all persons convicted of crime in the courts of the state may exercise. In other words, it is a privilege granted by the law to those against whom judgments of confinement or punishment by fine was rendered, which they may exercise at their opinion. When all appeal is once lodged in this court, and the cause submitted, unless good cause is shown to the contrary, this court has uniformly permitted the plaintiff in error to dismiss his appeal at his election. Nash v. State, 13 Okla. Cr. 211, 163 P. 330.

In the instant case there is no reason made to appear why the dismissal should not be ordered in compliance with the stipulation of the respective counsel.

It is therefore adjudged and ordered that the appeal be and is accordingly dismissed. Mandate forthwith.

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