SMITH v. STATE

SMITH v. STATE
1953 OK CR 126
261 P.2d 479
97 Okl.Cr. 203
Case Number: A-11797
Decided: 09/16/1953
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Failure to File Brief or Present Argument Affirmance. Where defendant appeals from judgment of conviction and no briefs are filed or argument presented, Criminal Court of Appeals will examine the evidence, not to discover errors in the admission or rejection of testimony but only to ascertain if it supports the verdict, and examine the pleadings, instructions, and judgment, and, if no material error is apparent, judgment will be affirmed.

Appeal from Municipal Criminal Court; City of Tulsa; Geo. B. Schwabe, Judge.

S.R. Smith was convicted of drunk driving, and he appeals. Affirmed.

Gerald F. O'Brien, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

BRETT, J.

Plaintiff in error, S.R. Smith, defendant below, was charged by information in the municipal criminal court of the city of Tulsa, Tulsa county, Oklahoma, with the offense of operating a motor vehicle over and upon the public highway in said county at a point in the 1700 block on South Main street in the city of Tulsa while under the influence of intoxicating liquor, all in violation of Title 47, § 93 [47-93], O.S. 1951. The defendant stood trial, was found guilty and sentenced to pay a fine of $94 and costs in the amount of $6 from which judgment and sentence an appeal was perfected to this court.

Appeal was filed herein on December 23, 1952, and under the rules of this court brief in support of the petition in error should have been filed within 60 days. The case was set for oral argument on January 28, 1953. No appearance was made in behalf of the appeal and no briefs were filed herein, and on said last date the matter was submitted on the record. It has repeatedly been held that where defendant appeals from a judgment of conviction and no briefs are filed or argument presented, Criminal Court of Appeals will examine the evidence, not to discover errors in the admission or rejection of testimony but only to ascertain if it supports the verdict, and examine the pleadings, instructions, and judgment, and, if no material error is apparent, judgment will be affirmed. Woods v. State, 92 Okla. Cr. 53, 220 P.2d 463; Whitlow v. State, 85 Okla. Cr. 2, 184 P.2d 253; Long v. State, 84 Okla. Cr. 445, 184 P.2d 119; Parks v. State, 83 Okla. Cr. 70, 173 P.2d 234. An examination of the record herewith presented discloses no fundamental error in the same. The judgment and sentence of the municipal criminal court of the city of Tulsa, Tulsa county, Oklahoma, is accordingly affirmed.

POWELL, P.J., and JONES, J., concur.

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