IN BANC. Charles R. Archerd was convicted of larceny by bailee, and he appeals. On motion of the district attorney to dismiss the appeal.
MOTION GRANTED. REHEARING DENIED. Charles R. Archerd, defendant herein, was convicted in the circuit court of Marion county of the crime of larceny by bailee. After motion for a new trial had been denied, his attorney served on the district attorney a notice of appeal addressed, "To: State of Oregon, Plaintiff, and William H. Trindle, District Attorney, and U.G. Boyer, County Clerk of Marion county, Oregon", and stating that the defendant appealed to the supreme court of the state of Oregon from the judgment entered against him in said circuit court. Service on the district attorney was effected by handing to him a copy of the notice of appeal and having him acknowledge service on the original *Page 310 thereof. The original notice was then presented to, and filed by, the deputy county clerk of Marion county. The transcript on appeal, prepared by the county clerk, contained a copy of the notice of appeal with the acceptance of service thereon by the district attorney.
The district attorney now moves to dismiss the appeal on the ground that the notice was not served on the county clerk as provided by law.
The code of criminal procedure was enacted in 1864 and the provisions thereof relating to appeals remain to this date unchanged. Section 13-1209, Oregon Code 1930, concerning appeals in criminal cases, provides as follows: "An appeal must be taken by the service of a notice in writing on the clerk of the court where the judgment roll is filed, stating substantially that the appellant appeals from the judgment". The next section, 13-1210, relates to appeal by the defendant and is as follows: "If the appeal be taken by the defendant, a similar notice must be served on the district attorney for the county in which the judgment roll is filed."
In 1862 the code of civil procedure was adopted. It provides that, "The appellant shall cause the notice to be served on the adverse party and file the original, with proof of service endorsed thereon, with the clerk where the judgment or decree is entered": Code of Civil Procedure 1862, § 527. The two codes differ materially in wording, relative to appeals. It seems unreasonable to suppose that the legislature, after providing in the code of civil procedure that the notice of appeal should be served on the adverse party and the original thereof be filed with the clerk, would seek to accomplish the same result in the code of criminal procedure by the use of language differing *Page 311 materially from that used in the first instance. The Honorable M.P. Deady, who was a member of the code commission that prepared the code of civil procedure, was also the author of the code of criminal procedure.
In State v. Ellis, 3 Or. 497, it is said: "The requisitions of the code in reference to appeals in criminal, materially differ from those in regard to civil causes. * * * Notices are to be served differently."
Since the enactment of the code of civil procedure in 1862, § 527 thereof has been somewhat amended by allowing the party desiring to appeal to give notice thereof in open court. If we were to adopt the rule that filing a notice of appeal in criminal cases with the clerk of the court is tantamount to service thereof upon the county clerk, it is difficult to see in what manner notices in criminal cases were served differently from those in civil cases at the time of the decision in State v.Ellis, supra, when the only method of appealing in civil actions was by serving the notice on the adverse party and filing the original with the clerk.
The supreme court of Oregon has held in six reported cases that this court does not acquire jurisdiction of appeals in criminal cases unless notice of appeal in each instance has been served on the county clerk: State v. Horner, 36 Or. 68 (59 P. 549);State v. Blazier, 36 Or. 97 (60 P. 203); State v. Berger,51 Or. 166 (94 P. 181); State v. Mageske, 119 Or. 312 (227 P. 1065); State v. Berg, 138 Or. 30 (3 P.2d 783,4 P.2d 628); State v. McAweeney, 138 Or. 20 (3 P.2d 783,4 P.2d 628).
In State v. Horner, supra, the notice of appeal was not addressed to the county clerk, but in State v. Blazier, *Page 312 supra, it was addressed to the state of Oregon, the district attorney and the county clerk. In each and all of the cases above referred to the notice of appeal was filed with the county clerk, who prepared and filed with the clerk of this court the transcript on appeal, containing a certified copy of the notice of appeal.
The criminal code of Indiana, adopted in 1852, required both the defendant and the state in taking an appeal to serve notice thereof on the county clerk: McLaughlin v. State, 66 Ind. 193;Darr v. State, 82 Ind. 11. This law was amended by the code of 1881 so as to require service of notice on the clerk only in cases where the state appealed: Darr v. State, supra.
Prior to February 1, 1879, when it was repealed, a law of South Carolina required the notice of appeal to be served on the clerk:Kibler v. McIlwain, 12 S.C. 555; Crane, Boylston Co. v.Moses, 13 S.C. 43.
In Peck v. Phillips, 4 Dak. 430 (34 N.W. 65), the court said:
"The judgment was entered on the twenty-seventh day of February, 1886. On the sixth day of March notice of appeal was duly served by copy on the attorney for respondent, and on the same day the original notice was filed (as any other paper in the case would be) in the office of the clerk of the district court. And it is insisted that this was not such a service upon a clerk of the court as is contemplated by section 407 of the Code of Civil Procedure, which is as follows: `An appeal must be made — (1) By the service of a notice in writing on the adverse party or his attorney, and on the clerk with whom the judgment or order appealed from is entered', etc.; and the question is, was the filing of the notice of appeal in the office of the clerk of the court with the other papers in the case a sufficient service upon the clerk, within the meaning of that statute? We think not. What purpose or *Page 313 object the law-makers were seeking to accomplish by requiring a copy to be served upon the clerk that would not be attained by filing the original notice with him, we may not stop to discuss. The important consideration is to establish and settle the practice which has been far from uniform in all the courts of the territory."
In the following additional cases it was held that service of notice of appeal upon the clerk was essential to confer jurisdiction upon the appellate court: McLean v. State,28 Kan. 372; Valley Land Irrigation Co. v. Schone, 2 S.D. 344 (50 N.W. 356); Territory v. Hanna, 5 Mont. 246 (5 P. 250); PortBlakely Mill Co. v. Clymer, 1 Wn. Territory 607; Fitzgeraldv. Kelson, 71 Iowa 731 (29 N.W. 943); State ex rel. Farrell v.Clossner, 84 Iowa 401 (51 N.W. 16); Jones v. State,8 P.2d 687. No attempt is here made to cite all the cases from the above mentioned courts to the same effect on the question now before us. In none of the cases which we have found has the court, after deciding that service on the clerk was a prerequisite to confer jurisdiction on the appellate court, overruled its prior holding. Several states, it is true, have through their legislatures amended their laws to provide a different procedure. Such action, however, does not justify this court in usurping the function of the legislature, nor does it furnish any argument for overturning a long line of decisions and a well established rule of procedure.
If the legislature had intended that filing the original notice of appeal with the clerk was a sufficient service on him, it would have been a simple matter for it to follow the wording of the code of civil procedure. The clerk is made the legal custodian of all papers filed with him, those in civil as well as criminal proceedings. *Page 314
During the 1864 legislative session, when the code of criminal procedure was enacted, there was also passed what was termed the Justices' Act. These when published were bound together in one volume entitled "Code of Criminal Procedure together with the Justices' Act". The footnote at the beginning of the Justices' Act contains this notation: "This act is supplementary to the foregoing codes of civil and criminal procedure, and is intended to regulate the subject in such particulars, as require special provisions in such courts. The act was prepared and reported to the legislative assembly, that met September 12, 1864, by M.P. Deady. It was passed at the same session, with some amendments, and took effect as declared in section 133, for May 1, 1865." A somewhat similar notation precedes the code of criminal procedure, to the effect that the same was prepared and reported by M.P. Deady, was passed as reported, and became effective on the first day of May, 1865.
The chapter of the Justices' Act applying to appeals in criminal actions, section 107 of that enactment, provides as follows: "The appeal is taken in the same manner and within the same time, as in the case of an appeal from a judgment in a civil action, except that the notice thereof must be served upon the district attorney for the county or upon the private prosecutor in the action."
Had Judge Deady in preparing both the criminal code and the Justices' Act, and the legislature in enacting them, intended that appeals in criminal cases from the circuit court to the supreme court be the same as in civil actions, it would have been an easy matter to use substantially the same language in the criminal code as that employed in the Justices' Act. It is *Page 315 significant also that in the criminal code reference is made frequently to the civil code in outlining the procedure in criminal matters. As a few instances, we cite the following: Section 13-908, Oregon Code 1930, in reference to the taking, filing and reading of depositions; section 13-920, providing that certain chapters of the civil code shall apply to and regulate the conduct of the trial of criminal actions; section 13-928, to the effect that the law of evidence in civil actions shall apply in criminal proceedings, except as otherwise provided in the criminal code; section 13-1116, as to the docketing of judgments in criminal actions, directing that it be the same as in civil actions; section 13-1118, concerning execution in certain proceedings; section 13-1119, providing that the clerk shall complete and endorse the judgment roll in criminal actions in the manner required in the code of civil procedure; section 13-1138, to the effect that judgment for the payment of money in criminal actions shall be enforced as directed in civil actions; and section 13-1413, as to certain sections in the civil code applicable in "criminal actions, examinations and proceedings".
The frequent references in the criminal code to different sections of the civil code, and the adoption of the procedure prescribed in the latter code governing in criminal matters, where applicable, indicate that Judge Deady in drafting the criminal code, and the legislature in enacting it, intended that the procedure outlined in the civil code where applicable should become a part of the criminal code by reference to specific sections or chapters of the civil code, thereby obviating all unnecessary repetition.
When we consider the method thus pursued, and the further fact that the Justices' Act expressly provides *Page 316 that appeals from justices' courts in criminal actions shall be the same as in civil actions, it is difficult to understand why Judge Deady and the legislature provided in detail the procedure to be followed in appeals in criminal actions from the circuit court to the supreme court, and employed the language there used, and further provided that "the only mode of reviewing a judgment or order, in a criminal action, is prescribed by this chapter": Section 13-1201, Oregon Code 1930, if they intended that such procedure should not differ from that which had already been prescribed by the code relating to appeals in civil actions.
It is needless, however, to pursue this subject further. This court has, by a long line of decisions, uniformly held that the notice of appeal must be served on the county clerk, and that filing the original notice with the clerk does not constitute service on him. There is no good reason why we should now overrule these decisions. No hardship is imposed upon a defendant in a criminal action who desires to appeal, by requiring him to follow the procedure outlined by the statute. If the method of appeal is to be changed, it should be done by the legislature and not by the courts.
The motion to dismiss the appeal should be, and hereby is, allowed.
RAND, C.J., and BEAN and KELLY, JJ., concur.