35 Wn.2d 177, THE STATE OF WASHINGTON, Respondent, v. CYRIL MELVIN BERG, Appellant

[No. 30975. Department Two.      Supreme Court      November 23, 1949.]

THE STATE OF WASHINGTON, Respondent, v. CYRIL MELVIN
                     BERG, Appellant.1

[1] CRIMINAL LAW - APPEAL - JURISDICTIONAL STEPS - FILING OF TRANSCRIPT - SERVICE OF NOTICE OF APPEAL. An appeal in a criminal cause will be dismissed, where it appears that the certified transcript of the record was not filed within ninety days, as required by Supreme Court Rule 12(3), and the written notice of appeal was not served upon the prosecuting attorney within five days after the entry of the judgment appealed from, as required by Supreme Court Rule 12(1)(a).

Appeal from a judgment of the superior court for Chelan county, Kemp, J., entered March 17, 1949, after the verdict of a jury rendered in a criminal cause. Appeal dismissed.

J. Edmund Quigley and John W. Croome, for appellant.

Robert E. Conner and Norman L. Schwalb, for respondent.

PER CURIAM. -

[1] Appellant gave notice of appeal in open court on March 17, 1949, but the certified transcript of the record was not filed with either the supreme or the superior court until ninety-two days later; and, by the terms of Supreme Court Rule 12(3), no appeal in a criminal case is effectual unless such transcript is filed within ninety days after giving notice of appeal. State v. Hampson, 9 Wn. (2d) 278, 114 P. (2d) 992.

Appellant also prepared a written notice of appeal, and it was filed on March 21, 1949, within five days after the entry of the judgment appealed from, but it was not served upon the prosecuting attorney. Rule 12(1)(a) provides that where a written notice of appeal is given in a criminal

1 Reported in 211 P. (2d) 710.

 178    IN RE MARSHALL'S ESTATE.     [35 Wn. (2d)

case it shall be served upon the prevailing party within five days after the entry of the judgment appealed from. Rule 12(3) provides that, if a notice of appeal is not given in the manner and within the time specified by Rule 12(1)(a), the appeal is not effectual.

The appeal is dismissed.

January 6, 1950. Petition for rehearing denied.