
    THE PEOPLE OF THE TERRITORY OF UTAH, Respondent, v. DAVID FENNEL, Appellant.
    Practice — Notice op Appeal. — An appeal in a criminal case will toe ’ 'dismissed, unless the record shows that the notice of appeal was duly served and no evidence dehors the record will supply its failure. The People, <&e., v. Gough, 2 Utah 69, followed.
    Motion to dismiss an appeal.
    
      Mr. W. H. Dickson, for the motion.
    
      Mr. Arthur Brown, contra.
    
   Boreman, J.:

The appellant was convicted of murder in the second district court, and sentenced to imprisonment in tlie penitentiary for a term of years. From that judgment he "brings the case to this court. The prosecution filed two motions to dismiss the appeal, the first of which alone it will be necessary for us 'to consider. The ground of the first motion is that no appeal was taken as required by law, as it does not appear from the transcript that any notice of appeal was ever served upon tbe attorney for tbe people. Tbe criminal practice act, Laws of Utab, 1878, p. 139, provides as follows:

“Sec. 363. An appeal is taken by filing witb tbe clerk of tlio court in which tbe judgment or order appealed from is entered or filed, a notice stating tbe appeal from tbe same, and serving a copy thereof upon tbe attorney of tbe adverse party.”

Two things are required by this section to be done before an appeal is perfected, namely:

1st. Tbe filing of the notice of appeal with the clerk of tbe court below, and
2d. Tbe serving a copy of such notice upon tbe attorney of tbe adverse party.

Tbe transcript shows that notice of tbe appeal was filed witb the clerk of tbe court below, but fails to show any service of tbe notice upon tbe attorney for tbe people. Tbe record should show this. It is now offered to supply in this court tbe proof of this service. We cannot receive such proof. This court can only learn from tbe record whether an appeal has been taken or not. Nothing outside tbe record can be shown in this court to supply tbe defect.

This same question was before this court on a former occasion, in the case of The People, etc., v. Gough, 2 Utah, 69, and it was then held that tbe failure of tbe transcript to show tbe service of tbe notice of appeal upon tbe attorney of the people was fatal, and that tbe proof of such servicecouldnot.be supplied in this court. We see no reason to change that ruling.

The motion to dismiss tbe appeal is sustained.

Zane, C. J., concurred.

Powers, J.,

dissenting:

In this case tbe transcript shows that notice of appeal was filed witb tbe clerk of tbe lower court within tbe time allowed by law, but it does not show that a copy was served upon tbe district attorney or bis assistant. Therefore a motio.u to dismiss tbe appeal is made by tbe district attorney tinder tbe provisions of tlie criminal practice act: Laws of Utah, 1878, p. 137; wliieli provides tbat “an appeal is taken by filing witli tlie clerk of tlie court in wliieli tlie judgment or order appealed from is entered or filed, a notice stating tbe appeal from tbe same, and serving a copy thereof upon the attorney for tbe adverse party.” Tbe criminal practice act, sec. 370, also provides tbat “if tbe appeal is irregular in any substantial particular, but not otherwise, tbe appellate court may, on any day in tbe term, on motion of tbe respondent, upon five days notice, accompanied with copies of the papers upon which tbe motion is founded, order it to be dismissed.”

On tbe bearing of this motion, it was admitted tbat service of a copy of the notice of appeal upon tbe proper person bad actually been made in due time, but tbat there bad been a failure to file proof of service.

Under such a state of facts, it is a hardship to dismiss tbe appeal upon a bare technicality, particularly when tbe appellant is convicted of murder and sentenced to a long-term of years. The law gives him a right to have bis case reviewed by this court, and we should be careful bow we defeat tbat right by á too rigid application of tbe rules of practice. Tire notice of appeal tbat must be filed with tbe clerk, is tbe claim of appeal. Tbe copy which is required to be served is merely for tbe purpose of notifying tbe opposite party. In this case tbe copy was in fact served, so that no one has been misled. The district attorney has heretofore been in court and agreed tbat this case be set for a day certain, so it is plainly seen tbat tlie people have not been injured by this error.

A petition for a rehearing having been filed, tbe following decision was rendered thereon:

Boreman, J.:

Tbe appeal in this case having- been dismissed at tbe present term, tbe appellant petitions for a re-bearing.

Tbe petition refers the court to an unreportod case of Campbell et al. v. Taylor et al., decided when neither of tbe present members of tbe court were on the bench, and refers also to the case of McClelland v. Dickinson, 2 Utah, 100.

In neither of these cases did the questions raised go to the jurisdiction of the court. It .is well settled by long practice and repeated decisions that in criminal cases the court must learn from the record and not from extraneous matters whether it has jurisdiction or not: People v. Clark, 49 Cal., 455.

The alleged harshness of the rule was duly considered, but that is not to control where the rule is one of long standing and well known to the bar.

But the petitioner further asks that he may now be allowed to make proof of service in the lower court1, and have the same certified up by the clerk and added to the transcript. No reason is offered why this request was not made at the hearing of the motion to dismiss the appeal. It is a late day, after an appeal has been dismissed out of court, for a party to come back again and ask to be allowed to send to the court below and perfect his appeal. That is something he should have thought of before the motion to dismiss the appeal was disposed of. The court cannot consent that a party may sit by and wait until the motion is decided against him and then make his request. By such a practice a case would be almost endless in its career. Whether the request would have been granted or not, if it had been made at the proper time, it is not necessary now to consider. It is sufficient to say that it was not made and no reason is given why it was not made.

A rehearing will not be granted in any case, except for strong reasons, but in this petition nothing is urged that was not fully available upon the former hearing.

The petition for a rehearing is denied.

Zane, C. J., concurred.

Powers, J., expressed no opinion.  