PIPPIN v. STATE
PIPPIN v. STATE
1972 OK CR 121
497 P.2d 767
Case Number: A-16895
Oklahoma Court of Criminal Appeals
Appeal from the District Court of Washington County; Arthur J. Boose, Judge.
George Briggs, Pawhuska, for plaintiff in error.
Larry Derryberry, Atty. Gen., for defendant in error.
¶1 Layfayette Pippin, hereinafter referred to as defendant, was convicted of Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor, Case No. CRM-70-195, in the Distinct Court of Washington County, and sentenced to serve a term of Ten (10) Days in the County Jail and to pay a Fine of $50.00. From that judgment and sentence he has appealed to this Court.
Although this cause was filed in this Court on August 26, 1971, no brief has been filed within the time provided by law, nor a ¶2 valid extension of time for the filing thereof. Therefore, on March 3, 1972, this cause was Summarily Submitted for opinion in accordance with the rules of this Court.
¶3 We have repeatedly and consistently held that where the defendant appeals from a judgment of conviction and no briefs are filed in support of the petition in error, this Court will examine the records only for prejudicial error. If none appear of record, the judgment will be affirmed. See, Simon v. State, Okl.Cr., 493 P.2d 454 (1972).
¶4 An examination of the record reveals only one question which should be ruled on. The defendant was tried and convicted for the crime of "Following Too Closely" in the Municipal Court of the City of Bartlesville and the instant case in the District Court, both charges arising out of the same transaction.
¶5 Defendant alleged at trial in District Court and in his petition in error in this Court that this constituted double jeopardy.
¶6 The elements of proof for the two charges herein are entirely different, which is the central issue. You could not use the elements of proof for the charge of "Following Too Closely" to convict a defendant of "Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor."
¶7 See, Landsberger v. State, Okl.Cr., 492 P.2d 1403 (1971) and cases cited therein.
¶8 This Court has carefully examined the record and reviewed the testimony and petition in error in the instant case, and find no fundamental or prejudicial error. The record disclose that the defendant was afforded a fair and impartial trial, and the evidence was sufficient to support the verdict of the jury.
¶9 There being no apparent error in the record on appeal, it is the opinion of this Court that the judgment and sentence is hereby affirmed.
BUSSEY, P.J., concurs.
BRETT, J., concurs in result.