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court of appeals or the court in which the original judgment was rendered in the further progress of the cause, and will not depart without leave of the court. If no bond be given the appeal shall not stay execution of the judgment, except in capital cases or where otherwise specifically provided by law. If pending the appeal the bond be given a further execution of the judgment shall be stayed and the defendant released pending the determination of the appeal. In all cases where the sentence is for a crime not bailable the defendant shall be confined in the penitentiary pending the appeal. (5995 R. L. 1910.)

11. Case-Made In all criminal cases appealable to the criminal court of appeals, the appellant may prepare, and it shall be the duty of the court to provide for the preparation and settling of a case-made in all respects as in civil cases, and the case-made so settled, served and filed in the trial court may be sent to the appellate court in lieu of all other records or bills of exception, or the proceeding in the appellate court may be as provided in the next section. (5996 R. L. 1910.)

When case-made cannot be obtained through no fault of appellant, judgment will be set aside. Farmer v. State, 5 Okla. Cr. 151, 114 Pac. 753; Jordan v. State, 6 Okla. Cr. 384, 118 Pac. 813.

If records show proof of service of notice, and return of service is lost, it will be presumed that service was regular. Schriebar v. State, 6 Okla. Cr. 119, 116 Pac. 348.

Instructions and testimony not contained in case-made will be considered waived. Phillips v. U. S., 2 Okla. Cr. 628, 103 Pac. 861; Komiski v. State, 3 Okla. Cr. 431, 106 Pac. 800.

On transcript, only such errors will be considered as are based on the record. Gull v. State, 15 Okla. Cr. 596, 179 Pac. 618.

Case-made must affirmatively show absence of order convening court on proper date. Irregularities will not be presumed. Wilson v. State, 3 Okla. Cr. 714, 109 Pac. 289; Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237; Price v. State, 5 Okla. Cr. 147, 113 Pac. 1061.

Matters assigned as error but not shown in record to be true, cannot be considered. Saunders v. State, 4 Okla. Cr. 265; Cochran v. State, 4 Okla. Cr. 380, 111 Pac. 974; Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296; Keeter v. State, 15 Okla. Cr. 139, 175 Pac. 263; Kline v. State, 15 Okla. 351, 176 Pac. 414; Jones v. Terr, 4 Okla. 46; Schave v. State, 4 Okla. Cr. 285; Munson v. State, 13 Okla. Cr. 569, 165 Pac. 1162; Price v. State, 13 Okla. Cr. 581, 165 Pac. 1160.

Certificate of trial judge does not attest the truthfulness of affidavits in support of, or in opposition to, matters alleged in motion for new trial. Nowlin v. State, 7 Okla. Cr. 27, 115 Pac. 625.

Unless copy of judgment is incorporated in record or case-made appeal will be dismissed. Brown v. Terr. 15 Okla. 362; Fowler v. State, 11 Okla. Cr. 157, 143 Pac. 658.

But see sufficient showing against objections that record does not contain copy of judgment. Helms v. State, 14 Okla. Cr. 384, 171 Pac. 340.

Trial judge should incorporate in record any matter that has been omitted. Hast v. Terr., 5 Okla. Cr. 162, 114 Pac. 261; Lumpkin v. State, 5 Okla. Cr. 488, 115 Pac. 478.

Case-made must be filed with court clerk from which appeal is taken, or appeal will be dismissed. Cook v. State, 3 Okla. Cr. 426, 106 Pac. 558. Case-made must contain enough to enable appellate court to understand the question presented. Johnson v. State, 5 Okla. Cr. 577, 114 Pac. 339.

Any paper attached to case-made after its settlement is void. Fortner v. State, 5 Okla. Cr. 609, 115 Pac. 378.

If reversal is sought on grounds of admission of incompetent evidence, the evidence itself must be presented. Warren v. State, 6 Okla. Cr. 2,

115 Pac. 812; Anderson v. Terr., 19 Okla. 274.

A certificate of the court clerk to the files, after time has elapsed, is a nullity. Blanchard v. U. S., 7 Okla. 13.

Errors, incompetent evidence, and names of witnesses must be pointed out. Johnson v. State, 1 Okla. Cr. 322, 97 Pac. 1059.

Error must be such as to effect result, before case will be reversed. Ryan v. State, 8 Okla. Cr. 624, 129 Pac. 685.

Certificate to case-made, if it substantially follows the statute, will be approved. Hill v. Terr., 15 Okla. 212.

Briefs must be filed within time fixed by rule or extension of time obtained. Presley v. State, 4 Okla. Cr. 378, 111 Pac. 1019.

Appellate court will not review requested instructions on any particular point, unless the point itself be presented. Gatliff v. Terr., 2 Okla. 523; Starr v. State, 9 Okla. Cr. 211, 131 Pac. 542.

Record must show that every essential element was complied with and if only part of record is presented it will be presumed that proceedings were regular. Jones v. Terr., 4 Okla. 46; Hess v. State, 9 Okla. Cr. 516, 132 Pac. 505.

Facts proposed to be proven, but which have been excluded, must be preserved in the record. Price v. State, 1 Okla. Cr. 358, 98 Pac. 447; Collingwood v. State, 13 Okla. Cr. 443, 164 Pac. 1154.

See method of preserving facts proposed to be proven. White v. State, 4 Okla. Cr. 144; Fain v. State, 14 Okla. Cr. 556, 174 Pac. 296. General exceptions that "the court erred in matters of law", is too indefinite. Hopkins v. State, 4 Okla. Cr. 194, 108 Pac. 420.

Unless objections are made and exceptions saved, same will not be reviewed, except for fundamental error. Johnson v. State, 1 Okla. Cr. 321, 97 Pac. 1059; Campbell v. U. S., 1 Okla. Cr. 307, 97 Pac. 1052; Stack et al. v. State, 4 Okla. Cr. 1, 109 Pac. 126; Hayes v. State, 4 Okla Cr. 377, 111 Pac. 1020; Crump v. State, 7 Okla. Cr. 535, 124 Pac. 632; Steward v. State, 9 Okla. Cr. 327, 131 Pac. 725; Wamsley v. Terr., 3 Okla. 279; Huff v. Terr., 15 Okla. 376.

Where certificate of trial judge shows full transcript of record, same will be examined for fundamental errors. Ledgerwood v. State, 4 Okla. Cr. 18, 109 Pac. 735.

Transcript of the record cannot be impeached by affidavits. Jenkins v. State, 11 Okla. Cr. 169, 145 Pac. 500.

Where record fails to show that case-made was submitted to county attorney and approved by the judge, it will be stricken. Etter v. State, 4 Okla. Cr. 230.

An instruction will not be considered unless excepted to. Sparks v. Terr., 16 Okla. 127), except for fundamental errors. Ford et al. v. State,

5 Okla. Cr. 241, 114 Pac. 273; Sims v. State, 7 Okla. Cr. 7, 120 Pac. 1032; Star v. State, 9 Okla. Cr. 211, 131 Pac. 542.

An order extending the time in which to make case-made must also fix the time in which same must be served, and the time in which to file same in appellate court. Pinchback v. State, 14 Okla. Cr. 302, 170 Pac. 714.

Case-made which fails to contain instructions, the exceptions to such instructions will be considered waived. Phillips v. U. S., 2 Okla. Cr. 628, 103 Pac. 861; Hines v. U. S., 2 Okla. Cr. 639, 103 Pac. 879; Komiska v. State, 3 Okla. Cr. 431, 106 Pac. 800.

Where, on account of defect case-made cannot be considered, the transcript, if properly in form, will be reviewed for fundamental errors. Rasberry v. State, 4 Okla. Cr. 614, 103 Pac. 865.

"Case-made" and "transcript" distinguished. Jones v. State, 9 Okla. Cr. 189, 130 Pac. 1178.

The record, when not properly certified, cannot be treated as a transcript. Durant v. State, 3 Okla. Cr. 447, 106 Pac. 651; Lewis v. State, 3 Okla. Cr. 448, 106 Pac. 647; Humphrey v. State, 3 Okla. Cr. 504, 106 Pac. 978; Cohn v. State, 4 Okla. Cr. 498; Williams v. State, 7 Okla. Cr. 249, 123 Pac. 190; Jones v. State, 9 Okla. Cr. 189, 130 Pac. 1178; Makatch v. State, 5 Okla. Cr. 34, 113 Pac. 200; Billus v. State, 7 Okla. Cr. 37, 121 Pac. 790.

Matters occurring in open court cannot be incorporated into case-made by affidavits, but must appear as recitations. Beatty v. State, 5 Okla. Cr. 105, 113 Pac. 237.

12. Petition in Error-Instead of the appeal herein before provided for any party desiring to appeal to the criminal court of appeals in any criminal case may proceed by case-made and petition in error in all respects and with all the rights, as provided in "Procedure, Civil," and the summons in error shall be served upon the attorney general, unless the same is waived as in other cases. Instead of the case-made plaintiff in error may attach to his petition in error a transcript of the proceedings of record in the trial court. (5997 R. L. 1910.)

Object of case-made discussed. Where case-made fails to contain all material parts of proceedings, and such record actually exists, appellate court will permit case-made to be supplemented by transcript of such omitted parts. Hyde v. Terr., 8 Okla. 60.

Case-made or transcript filed without petition in error is a nullity. Groves v. State, 13 Okla. Cr. 260, 163 Pac. 1112; Edwards v. State, 2 Okla. Cr. 715, 103 Pac. 1072; Bonaparte v. U. S., 3 Okla. Cr. 345, 106 Pac. 347; Wilson v. State, 3 Okla. Cr. 348, 106 Pac. 348; Winne v. State, 8 Okla. Cr. 52, 126 Pac. 266; Roberts v. State, 10 Okla. Cr. 312, 136 Pac. 201.

13. Correction of Case-Made-If, after any record or case-made is filed in the appellate court, in either a civil or a criminal cause, it shall appear that any matter which is of record in the court from which the appeal is taken, touching the cause appealed, or that any evidence heard on the

trial of said cause, or that any statement or certificate or motion, or other matter is omitted from such record or casemade, or are insufficiently stated therein, the appellate court may, on its own motion, or on motion of any party to such cause, within a reasonable time, to be fixed by the court, if in session, and if not in session, to be fixed by any justice of that court, prepare such omitted parts, and file such corrections in the appellate court, with like force and effect as though such corrected or added parts had been originally incorporated in the record or case-made, when first filed; and no appeal shall be dismissed by reason of such errors or omissions, until an opportunity be given to supply such corrections, and if ordered by the court on its own motion, the parties shall be given reasonable notice of the time allowed, and if made on the motion of one of the parties, the party desiring to amend must give to the opposite parties such notice as the court may by rule prescribe; or the parties, appellant and appellee, may by written agreement file such corrections. If such corrections be not made within the time so allowed, then the appeal may be dismissed, or judgment be affirmed, as the court may deem proper, and such order to correct, or leave so to do, may be had at any time before the cause is finally decided by the appellate court. (5243 R. L. 1910.)

Where no amendments to case-made were suggested at time same is settled and signed, application for amendment in appellate court comes too late. Hunter v. State, 3 Okla. Cr. 533, 107 Pac. 444.

Record or case-made may be corrected on proper application. Simers v. State, 9 Okla. Cr. 119, 130 Pac. 1112.

Record or case-made may be amended on proper application. Schriebar v. State, 5 Okla. Cr. 151, 114 Pac. 753; Jordan v. State, 6 Okla. Cr. 384, 118 Pac. 813.

14. Successor to Judge May Settle-If, after final judgment in any civil or criminal case, the judge who presided at the hearing and trial of said cause, or any part thereof, or in any of the proceedings therein, shall die, or be out of office and absent from the State, or unable to settle the case, the successor of said judge shall settle, sign and certify the case-made in said cause, or such part thereof as was presided over by such deceased or absent judge, and make all other necessary orders therein to enable the party to perfect the record for the appellate court; and to that end may, upon, reasonable notice or appearance of the parties, hear evidence for the purpose of determining any disputed matter of fact in relation to the proceedings to such cause. (5245 R. L.

Judge pro tem. may fix time in which case-made may be prepared and served, but having fixed such time, cannot extend same. But extension may be granted by regular judge, or by any judge who is then presiding; provided that the record show that court was actually in session at the time. Rasberry v. State, 4 Okla. Cr. 613, 103 Pac. 865; Steen v. State, 5 Okla. Cr. 295, 114 Pac. 343; Dobbs v. State, 5 Okla. Cr. 475, 114 Pac. 358, 115 Pac. 320; Austin v. State, 6 Okla. Cr. 177, 117 Pac. 1098; Johnston v. State, 6 Okla. Cr. 354, 118 Pac. 674.

Case-made cannot be settled and signed by a judge who did not try the case. Scott v. State, 4 Okla. Cr. 657; Wilcox v. State, 15 Okla. Cr.

453, 177 Pac. 924.

15. Transcript; Fee-The judge may, upon the application of either party in a criminal case, direct the reporter to make out and file with the clerk of the court a transcript of his shorthand notes when the same is needed in such case, and he shall receive as compensation therefor ten cents per

Provided, however, that if before a transcript of the notes is ordered on application of 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. (1788 R. L. 1910.)

Defendant entitled to appeal as a poor person on proper showing. Hutchinson v. State, 13 Okla. Cr. 717, 167 Pac. 338; Clarady v. State, 9 Okla. Cr. 552, 132 Pac. 691; Jeffries v. State, 9 Okla. Cr. 573, 132 Pac. 823; Wainright v. State, 11 Okla. Cr. 547.

16. Transcript for Parties; Fee-The reporter shall, on the request of either party in a civil or criminal case, make out such transcript and deliver the same to the party desiring it, on payment of his fees therefor by such party at the rate of ten cents per folio, which shall be allowed as taxable cost. (1789 R. L. 1910.)

17. Exceptions-The exceptions stated in a case shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken. (5999 R. L. 1910.)

18. Costs-In no such action in the criminal court of appeals shall any charge, fees, or costs be taxed or allowed for making any copy of any paper filed in said action, except for one copy of said petition in error and case-made, or transcript, when such copy shall be ordered by the court for its use, and the same has not been furnished by the plaintiff in error thirty days before the first day of the term at which

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