In Banc. The defendants John Berg and F.J. McAweeney were jointly indicted for the crime of attempted larceny. They were tried separately and each was convicted and sentenced. The facts are the same in each case. Both attempted to appeal to this court. The district attorney moved to dismiss the appeals for the reason that the notices of appeal were not served upon the clerk of the circuit court, where the judgment rolls are, as required by section 13-1209, Oregon Code 1930.
Notices of appeal were served upon the district attorney. No notice of appeal in either case was served upon the clerk of the circuit court in which the cases were tried. Section 13-1209 provides that an appeal in a criminal action must be taken by the service of notice in writing on the clerk of the court where the judgment roll is filed. Section 13-1210 provides that if the appeal be taken by the defendant a similar notice must be served on the district attorney.
In State v. Horner, 36 Or. 68 (59 P. 549), State v.Blazier, 36 Or. 97 (60 P. 203), and State v. Berger, 51 Or. 166 (94 P. 181), each being a criminal case, and appeals being matters of purely statutory regulation, the appeals were dismissed for want of a substantial compliance with the statute. In State v. Mageske, 119 Or. 312 (227 P. 1065, 249 P. 364), the appeal was dismissed for the same reason. Upon stipulation of the parties, however, the appeal was reinstated.
Our attention has been called to the fact that in another state the rule is different.
Following the opinions in this state, the appeals are dismissed. *Page 22