Callicott v State

Callicott v State
1947 OK CR 6
176 P.2d 837
83 Okl.Cr. 307
Decided: 01/22/1947
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Failure to File Brief or Argue-Affirmance.

Page 308

of Appeals will examine evidence to ascertain if it supports verdict, and examine pleadings, instructions and judgment, and if no fundamental error is apparent, judgment will be affirmed.

Appeal from County Court, Choctaw County; E. D. Ellis, Judge.

Heron Wesley Callicott was convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor and fined $1 and costs, and he appeals. Affirmed.

O. A. Brewer, of Hugo, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Haskell A. Holloman, Asst. Atty. Gen., and Ralph K. Jenner, County Atty. of Choctaw County, of Hugo, for defendant in error.

BAREFOOT, P. J. Defendant, Heron Wesley CalliCott, was charged in the county court of Choctaw county with the crime of operating a motor vehicle while under the influence of intoxicating liquor; was tried, convicted and sentenced to pay a fine of $1 and costs, and has appealed.

This appeal was filed on June 20, 1945, but the defendant has failed to file a brief herein, and made no appearance at the time the case was assigned for oral argument. The Attorney General has filed a motion to advance the case, and to have the judgment affirmed.

Under the rules of the Criminal Court of Appeals, we have carefully examined the information and other pleadings, the record, the instructions of the court and judgment, and no fundamental error being apparent, are of the opinion that the motion of the Attorney General should be sustained.

Page 309

The record reveals that Mr. L. D. Rhoades, a highway patrolman, while driving down the highway in Choctaw county, observed a truck parked by the road on which a tire was being changed. On the opposite side of the highway there was a parked private automobile with the rear extending about four feet out on the highway. The defendant was in this car, and when Mr. Rhoades stopped to investigate, defendant immediately drove off down the highway. He attempted to turn in at his home, and almost hit a bridge. He backed up, and made the turn. When defendant got out of the car, he fell, and was helped up by the patrolman, who had followed him, and who testified that he was very drunk at the time. Defendant was calling his mother, and cursing. Mr. Rhoades was not in uniform and did not arrest the defendant, but told him who he was and went to the sheriff's office, and he and the sheriff, Cap Duncan, and one of the deputies, Byrd Collins, returned to the home of the defendant, within 20 minutes. Both the sheriff and his deputy testified that defendant was drunk, and that he was cursing Mr. Rhoades and they smelled whisky on his breath.

Defendant, his mother and Mr. Carl Ross, a neighbor, testified that the defendant was not drunk. Several witnesses were presented by defendant, who testified to his good reputation.