HUBBARD v. STATE

HUBBARD v. STATE
1972 OK CR 116
497 P.2d 440
Case Number: A-17086
Decided: 04/26/1972
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Adair County; David Harris, Associate District Judge.

Ernest Hubbard was convicted for the crime of Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor; sentenced to a term of Ten (10) Days in the County Jail and fined Two Hundred Dollars ($200.00); and appeals. Affirmed.

Paul E. Simmons, Tahlequah, for appellant.

Larry Derryberry, Atty. Gen., for appellee.

OPINION

SIMMS, Judge:

¶1 Appellant, charged by information in the District Court of Adair County, Oklahoma, with the crime of Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor, in Case Number CRM-71-104, was tried before a jury, found guilty, sentenced to a term of Ten (10) Days in the County Jail and fined the sum of Two Hundred Dollars (200.00). From that judgment and sentence Appellant has perfected an appeal to this Court.

¶2 This appeal was timely perfected on the 12th day of November, 1971, with the Appellant's brief due twenty (20) days thereafter by Court rules. No brief has been filed nor has an extension of time been requested. Therefore, on the Order of the Presiding Judge of this Court and in accordance with the Rules of this Court, this cause was summarily submitted on the record for examination for prejudicial error only. This Court has carefully examined the original record and the transcript of the evidence in this case in connection with the Appellant's petition in error. We find that while there is a conflict between the evidence of the State and the evidence of the Appellant there was competent evidence in the record from which the jury could reasonably have concluded that the defendant was guilty as charged, and in that case, this Court will not interfere with the verdict since it is the exclusive province of the jury to weigh the evidence and determine the facts. Simon v. State, Okl.Cr., 493 P.2d 454 (1972). Further examination revealed neither fundamental nor prejudicial error in the record and we note that the sentence is well within the range provided by statute and not excessive under the facts. The judgment and sentence is, therefore, affirmed.

BUSSEY, P.J., and BRETT, J., concur.