Opinion
No. A-3337.
Opinion Filed April 28, 1923.
Appeal from County Court, McCurtain County; J.D. Parks, Judge.
J.B. Dooley was tried for a violation of a town ordinance of the Incorporated Town of Idabel, and from an order of the county court sustaining a demurrer to the complaint, the town appeals upon a reserved question of law. Appeal dismissed.
J.A. Andrews, for plaintiff in error.
H.P. Hosey and C.P. Spriggs, for defendant in error.
This was a prosecution for a violation of a town ordinance. A trial was had before a justice of the peace, acting as a municipal magistrate for the town of Idabel. From the judgment rendered in that court the cause was appealed to the county court of McCurtain county. In the county court the accused filed a demurrer to the complaint upon which he was being tried, and, upon hearing of the demurrer, the court made the following findings:
"The demurrer is well taken for the following reasons: That the ordinance upon which the complaint herein is drawn is invalid and unconstitutional for the reason that it is in contravention of the statutes and Constitution of the state of Oklahoma, as its regulations follow a different mode than that prescribed by the state laws, and that the demurrer should be sustained and the defendant discharged from custody; to which ruling the plaintiff excepts and reserves the question for review by the Criminal Court of Appeals of the state of Oklahoma, and the plaintiff gives notice of appeal in open court to the Criminal Court of Appeals of the state of Oklahoma, and said appeal is by the court allowed."
It appears therefore that this is an attempted appeal by the incorporated town of Idabel upon a reserved question of law.
In the case of Oklahoma City v. Tucker, 11 Okla. Cr. 266, 145 P. 757, Ann. Cas. 1917D, 984, it was held that the right to appeal upon a reserved question of law is a statutory right, and that the statute does not authorize an appeal by a municipality. The reasons for this holding are discussed in the Tucker Case, and are adopted and followed in this case.
The appeal is therefore dismissed.
MATSON, P.J., and DOYLE, J., concur.