OWENS v. STATE

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OWENS v. STATE
1950 OK CR 147
224 P.2d 612
93 Okl.Cr. 22
Case Number: A-11263
Decided: 11/22/1950
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error Sufficiency of Evidence Where Judgment and Sentence Conform to Law. Where the evidence of the state is sufficient to support the conviction and the defendant offers no evidence to contradict the same, the judgment and sentence will be affirmed where the same conforms to the provisions of the law.

Appeal from County Court, Ottawa County; Willis D. Smith, Judge.

Frank Floyd Owens was convicted of operating a motor vehicle while under the influence of intoxicating liquor, and he appeals. Affirmed.

A.L. Commons, Miami, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

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BRETT, J.

The plaintiff in error Frank Floyd Owens, defendant below, was charged by information in the county court of Ottawa county, Okla., with the offense of driving a motor vehicle while under the influence of intoxicating liquor. The information alleged the offense was committed on March 22, 1949, in the city of Picher, Ottawa county, Oklahoma, by the defendant while driving his 1936 Dodge sedan, Oklahoma license tag No. 21-6096, from a point unknown to a point approximately at First and Columbus streets within the city of Picher, Okla., under said unlawful condition contrary to law.

The defendant Frank Floyd Owens was tried by a jury, convicted, and his punishment fixed at $100 fine and 30 days in the county jail and judgment and sentence was entered accordingly, on May 23, 1949.

The appeal herein was perfected on June 20, 1949 and said case set for oral argument on June 28, 1950, on which said date the case was submitted for consideration upon the record. We have examined the record and find no fundamental error in either the information, the evidence, instructions or any of the proceedings sufficient to warrant a reversal of the conviction had herein. We have repeatedly held that where the defendant appeals from a judgment of conviction and neither any brief is filed nor appearance for oral argument made, this court will examine the record and the evidence and if no error prejudicial to the substantial rights of the defendant is apparent, will affirm the judgment. Whitlow v. State, 85 Okla. Cr. 2, 184 P.2d 253; Smith v. State, 70 Okla. Cr. 81, 104 P.2d 1009; Walker v. State, 60 Okla. Cr. 302, 64 P.2d 935; Owens v. State, 60 Okla. Cr. 324, 64 P.2d 1234.

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Briefly, the record discloses, according to the evidence of Mrs. Walter Adkins, the defendant was driving his 1936 Dodge automobile, 1948 license tag, around the corner of Second and Main streets in Picher, Okla. In making the turn he drove two of his wheels up over and across the curb, proceeded east from that point and around the corner at Columbus street, north on Columbus street to First street where he drove his said automobile into a ditch. She stated she saw him when he came around the corner and as he passed in front of the taxi stand located at 2nd and Columbus streets, somewhere about 2 or 3 p.m.

This established the fact that the defendant was driving the automobile at the time he ran the same into the ditch. The evidence of Bert Hadden, city marshal, was to the effect that on March 22, 1949, his investigation disclosed that Frank Floyd Owens had run his car into a ditch near First and Columbus. The automobile was a 1936 Dodge bearing a 1948 license tag. The city marshal further testified that the defendant was unable to get himself out of the car, that he and another man helped him out and had to hold him on his feet. It was his opinion that the defendant was under the influence of intoxicating liquor.

The testimony of Garland Peek was to the effect that the defendant, at the time of the alleged accident, and immediately following, was under the influence of intoxicating liquor.

The defendant offered no proof in his own behalf save and except some character witnesses. Under these facts the defendant presented no defense. There being no conflict in the evidence, the jury, of course, could arrive at only one verdict, that was guilty as charged

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in the information. For all of the above and foregoing reasons, the judgment and sentence herein imposed is accordingly affirmed.

JONES, P.J., and POWELL, J., concur.