DARNELL v. STATE

DARNELL v. STATE
1962 OK CR 76
373 P.2d 82
Case Number: A-13155
Decided: 06/27/1962
Oklahoma Court of Criminal Appeals

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

Plaintiff in error pleaded guilty to the crime of larceny of an automobile in Case No. 18890 in the District Court of Tulsa County, Oklahoma, Honorable Eben L. Taylor, presiding, and from judgment of the said court assessing a term of three year's imprisonment in the State Penitentiary, he perfects this appeal. Affirmed.

Valdhe F. Pitman, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

BUSSEY, Judge.

¶1 On October 31, 1961, plaintiff in error, hereinafter referred to as defendant, pleaded guilty to the crime of Larceny of an automobile in case No. 18890 in the District Court of Tulsa County, Oklahoma.

¶2 Defendant had, prior to his plea of guilty, filed a motion for continuance on the grounds of absence of a material witness, which motion was supported by an affidavit and by a statement from Wayne J. Boyd, M.D., acting Superintendent of the Eastern State Hospital, Vinita, Oklahoma, as to the mental condition of a material witness, and upon the denial of this motion, the defendant had withdrawn his plea of not guilty and entered a plea of guilty in said case.

¶3 In support of his appeal to the Court of Criminal Appeals, the defendant makes the following assignments of error:

1. Irregularity in the proceedings of the trial court by which he was prevented from having a fair trial.

2. Error of the trial court in refusing to grant a continuance to secure additional witnesses.

¶4 No brief in support of his petition in error has been submitted by the defendant and no oral argument has been had.

¶5 Therefore, we are constrained to follow the rule often stated by this court, that:

"Where the defendant appeals from a judgment of conviction and no brief in support of the petition in error is submitted and no appearance for oral argument made, this court will examine the record only for fundamental errors." Titsworth v. State, Okl.Cr., 368 P.2d 526.

¶6 We have carefully examined the record and find no fundamental error therein.

¶7 For the reasons above set forth, the judgment of the District Court of Tulsa County, Oklahoma, is affirmed.

NIX, P.J., and BRETT, J., concur.