McCann v State

McCann v State
1942 OK CR 89
126 P.2d 559
74 Okl.Cr. 388
Decided: 05/27/1942
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Scope of Review in Absence of Briefs and Argument-Affirmance. Where no briefs are filed nor argument presented, this court will examine the evidence to as certain if it sustains the judgment, and if the evidence is sufficient, and in the absence of apparent material error, will affirm the judgment.

2. Intoxicating Liquors-Conviction for Unlawful Possession Sustained by Evidence. In the prosecution for unlawful possession of intoxicating liquor, evidence is held sufficient to support judgment of conviction.

Appeal from Court of Common PIeas, Oklahoma County; Carl Traub, Judge.

Virgil McCann was convicted of the crime of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

Robert R. Rittenhouse, of Oklahoma City, for defendant.

Mac Q. Williamson, Atty. Gen., and Lewis R. Morris, Co. Atty., of Oklahoma City, for the State.

BAREFOOT, P. J. Defendant, Virgil McCann, was charged in the court of common pleas of Oklahoma county

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with the crime of unlawful possession of intoxicating liquor, to wit: Fifteen (15) pints and 3/5th tax-paid whisky and rum, was tried before the court without a jury by agreement, convicted and sentenced to pay a fine of $50 and serve a term of 30 days in the county jail, and has appealed.

A motion to suppress the evidence for the reason that an illegal search of defendant's premises had been made, by reason of an invalid search warrant, was heard and overruled by the court.

An appeal from the judgment rendered was perfected by filing in this court on the 20th day of October, 1941, a petition in error with the case-made attached. No briefs have been filed and no appearance for oral argument has been made.

Where a defendant appeals from the judgment and conviction, and no brief in support of the petition in error filed, and no appearance for oral argument made, this court will examine the record for jurisdictional errors, and finding no fundamental error, the judgment will be affirmed.

The only contention relied on for a reversal of this case is that the court erred in overruling the demurrer to the information and the motion to suppress the evidence obtained under the search warrant.

We have carefully examined the record and do not find that the court committed error in overruling the demurrer and the motion to suppress.

The evidence revealed that the defendant was found in possession of 15 3/5ths pints of tax-paid whisky and rum at his home. He admitted that it was his. He had three or four phones in his home. A card was found and introduced in evidence advertising and soliciting business. The phone numbers on this card were identical with the

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numbers of his phones. There was no denial on his part that the liquor found was not for illegal sale. The only defense made was that the description in the search warrant was insufficient. Evidence was heard by the court. An examination of the same convinces us that the description was sufficient to justify the issuance of the search warrant.

Finding no error which would warrant a reversal of the judgment and sentence, and that the defendant was accorded a fair trial, it is ordered that the judgment of the court of common pleas of Oklahoma county be affirmed. Yount v. State, 74 Okla. Cr. 382, 126 P.2d 549, and cases cited therein.