In this case J. E. McElroy, as county clerk of Wagoner county, was by the grand jury of said county indicted for embezzlement, to which indictment a demurrer was interposed by the defendant, and which demurrer was by the judgment of the district court sustained.

It appears that the state has attempted to appeal from said judgment. An examination of the record discloses that no proof of service was made of the notice of appeal required by law to be served upon the defendant. When this is not done within the time allowed by the statute, this court does not acquire jurisdiction of the appeal.

It follows that upon the record this court is without jurisdiction. The attempted appeal herein by the state is therefore dismissed.