Price v State

Price v State
1911 OK CR 54
113 P. 1061
5 Okl.Cr. 147
Case Number: No. A-452
Decided: 03/07/1911
Oklahoma Court of Criminal Appeals

(Syllabus by the Court.)

1. APPEAL Review Absence of Briefs.

2. APPEAL Presumptions.

Appeal from Bryan County Court; Charles A. Phillips, Judge.

Joe Price was convicted of escape from jail, and appeals. Affirmed.

Smith C. Matson, Asst. Atty. Gen., for the State.

FURMAN, PRESIDING JUDGE. The Assistant Attorney General has filed a motion to affirm this case upon the ground that

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no brief has been filed and no appearance made on behalf of appellant, and that the record fails to show that any jurisdictional error was committed in the lower court. We are at a loss to understand why it is that counsel take an appeal to this court, and fail to prosecute said appeal by filing a brief pointing out the specific errors upon which they rely. Every facility for filing briefs on the part of those who take appeals is offered by this court. They can be prepared without expense and with very little labor, as we permit typewritten briefs to be filed. Counsel must know that in cases of this kind where an appeal is taken and no brief is filed, except in cases of the gravest character, the court will not examine the record for other than jurisdictional errors appearing therein. This rule has always been enforced in Oklahoma. See Wellman v. Territory, 2 Okla. 152, 37 P. 1066; Steil v. Territory, 4 Okla. 497, 46 P. 1117; Territory v. Brady, 4 Okla. 514, 46 P. 573; Foust v. Territory, 10 Okla. 214, 61 P. 923; White v. Territory, 11 Okla. 172, 65 P. 835; Hiatt v. Territory, 14 Okla. 363, 78 P. 81; Manning v. United States, 14 Okla. 604, 78 P. 92; Picklesimer v. Territory, 15 Okla. 193, 79 P. 777; Hance v. State, 2 Okla. Cr. 124, 100 P. 260; Lightle v. State, 2 Okla. Cr. 334, 101 P. 608; Banks v. State, 2 Okla. Cr. 339, 101 P. 610; Sturgis v. State, 2 Okla. Cr. 362, 102 P. 57; Price v. United States, 2 Okla. Cr. 449, 101 P. 1036; Elerick v. State, 2 Okla. Cr. 701, 103 P. 1038; Belt v. State, 2 Okla. Cr. 705, 103 P. 1069; Burgess v. State, 3 Okla. Cr. 127, 104 P. 916; Pulliam v. State, 3 Okla. Cr. 141, 104 P. 919; Meeks v. State, 3 Okla. Cr. 391, 106 P. 533; House v. State, 3 Okla. Cr. 467, 106 P. 806; Teels v. State, 3 Okla. Cr. 646, 108 P. 415; Stack v. State, 4 Okla. Cr. 1, 109 P. 126; Starr v. State, 4 Okla. Cr. 128, 111 P. 668; Walling v. State, 4 Okla. Cr. 414, 111 P. 1001; Simmons v. State, 4 Okla. Cr. 449, 109 P. 1117; Bonner v. State, 4 Okla. Cr. 639, 109 P. 1113.

Previous to statehood, if briefs were not filed in the United States Court of Appeals of the Indian Territory within the time

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allowed by the court, the appeal would be arbitrarily dismissed. See Poe v. United States, 6 Ind. T. 142, 89 S.W. 1020.

In the case of Knox Simmons v. State, 4 Okla. Cr. 489, 112 P. 35, Doyle, Judge, speaking for this court, said:

"The plaintiff in error has not been represented by counsel on his appeal, although he was ably represented and well defended upon the trial in the court below. No briefs have been filed nor argument made in this court. On May 14, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that this appeal was taken merely for the purpose of delay. Counsel have no right to appeal simply for the purpose of delay, nor unless they believe there is some ground for reversal, and if there is any reason for appealing, even though doubtful and inconclusive, it should be presented to the court for consideration, or some sufficient reason given for the failure so to do."

There are three good and sufficient reasons which support the rule requiring that briefs must be filed: First. The Attorney General's office is overcrowded with work, and it is unfair to that department, already burdened as it is, to be called upon to file a reply brief for the state when no brief has been filed on the part of the appellant. Every presumption must be indulged in favor of the regularity of the proceedings of the lower court, and he who complains of a want of such regularity has the burden of showing where such irregularity exists, and how he has been deprived of a substantial right thereby. When no such showing is made, the judgment of the trial court should be affirmed, unless it appears upon the face of the record that the court was without jurisdiction. Second. It is unfair to the public, when our docket is already crowded with cases which should be disposed of, to require the judges of this court to spend time in examining the record in each case to see if errors were not committed by the trial court, although none are complained of. Third. It is unfair to the members of this court, who are already burdened with work to the limit of human endurance, to expect its members to search records for errors either real or supposed of which counsel for appellant do not complain, and of which they think so little

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that they have not taken even the time and trouble to call the attention of the court to them. Where counsel perfect an appeal and fail to file briefs, it is equivalent to saying to the members of this court, "I have taken this appeal only for the purpose of delay," or, "If errors occurred in the trial of this cause, I do not know it, and I want you to get out a search warrant and see if you can find any." This is just what we understand when a cause is submitted and we find that briefs have not been filed. Owing to the great multiplicity of appeals that have been taken, we are now over one year behind with our work, although we give it our entire and undivided time and attention. We cannot act in the double capacity as counsel for parties and as a court.

This court does not act upon the presumption that everything which was done in the lower court is erroneous until it is shown to be correct, and is not hunting for excuses to set aside verdicts and judgments; but, on the contrary, we act upon the presumption that all proceedings in the trial court are proper and regular until it is shown that such is not the case. The appellant assists in the selection of the jury and he thereby vouches to this court for their intelligence, fairness, and integrity. Being thus recommended, the court must accept the verdict of the jury as being correct, unless the appellant clearly points out errors committed by the judge or jury. It is the duty of this court to decide questions properly submitted to it, and, when no briefs have been filed, except in cases of the gravest character, we will not do more than examine the record for jurisdictional errors.

We find no jurisdictional errors in the record of this case, and it is therefore affirmed.