Lay v State

Lay v State
1919 OK CR 90
179 P. 793
16 Okl.Cr. 13
Decided: 04/05/1919
Oklahoma Court of Criminal Appeals

APPEAL AND ERROR Review Affirmance. When no counsel

appears, and no briefs are filed, the court will examine the

pleadings, the instructions of the court, and the exceptions

taken thereto, and the judgment and sentence, and, if no

prejudicial error appears, will affirm the judgment.

Appeal from District Court, Okfuskee County; John L. Norman, Special Judge.

A.R. Lay and Jim Whitten were found guilty of the crime of larceny of live stock, and each sentenced to serve a period of two years' confinement in the state penitentiary, and they appeal. Judgment affirmed as to each.

C.T. Huddleston and J. Hugh Nolen, for plaintiffs in error.

S.P. Freeling, Atty. Gen., for the State.

MATSON, J. This is an appeal from the district court of Okfuskee county, wherein A.R. Lay and Jim Whitten were jointly charged and convicted of the crime of larceny of live stock, consisting of three heifer jersey calves, the property of one C.J. Jordan, a merchant of the town of Paden in said county. The jury sentenced the defendants each to serve a term of two years in the state penitentiary, and the court pronounced judgments in accordance with the verdict of the jury.

The appeal from these respective judgments has been pending in this court since the 6th day of October, 1917. No briefs have been filed in behalf of either plaintiff in error, and no counsel appeared to orally argue the case when the

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same was regularly submitted. Rule 9 of this court (12 Okla. Cr. viii, 165 P. x) provides:

"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment."

In addition to examining the foregoing portions of the record included within rule 9, supra, the writer of this opinion has taken occasion to carefully read the entire transcript of the evidence in this case. The state relied upon circumstantial evidence to sustain the conviction, and the defense interposed was an alibi. The evidence on behalf of the state and that on behalf of the defendants were directly in conflict, but it is not for this court to substitute its judgment on conflicting theories of fact for that of the jury. Where there is evidence reasonably tending to support the judgment, it is the duty of this court, under the law of this state, to affirm a judgment of conviction in a criminal cause.

The sufficiency of the information is not attacked in this court. It sufficiently charges the crime of larceny of live stock. The instructions appear to be fair to each defendant; in fact, no error is urged by either in the petition in error that any instruction was erroneous. The judgments conform to the charge contained in the information and the verdict returned by the jury.

The proceedings in the trial court are regular in every respect, and, no prejudicial error appearing from the record, the judgment is affirmed in accordance with the provisions of rule 9 of this court, supra.