Opinion
No. A-10455.
August 1, 1945.
(Syllabus.)
1. Appeal and Error — Scope of Review in Absence of Brief and Argument. When no counsel appears at the time the case is set for oral argument and no briefs are filed, Criminal Court of Appeals will examine the pleadings, the instructions of the court, and the judgment and sentence, together with the evidence, for fundamental error, and, if none appears, will affirm the judgment.
2. Burglary — Conviction for Second-Degree Burglary Sustained. Record examined, evidence found sufficient to sustain conviction for crime of burglary in the second degree and no fundamental error is found.
Appeal from District Court, Stephens County; Cham Jones, Judge.
David Jones was convicted of second-degree burglary, and he appeals. Affirmed.
Paul D. Sullivan, of Duncan, for plaintiff in error.
Randell S. Cobb, Atty. Gen., and J. Walker Field, Asst. Atty. Gen., for defendant in error.
The defendant, David Jones, was charged by information filed in the district court of Stephens county, together with R. D. Mooneyhan, Loyd Sheehan, and Elmer Petty, with the crime of burglary in the second degree; was tried separately, found guilty, sentenced to serve a term of two years imprisonment in the State Penitentiary, and has appealed.
The Attorney General has filed a motion to dismiss the appeal and affirm the judgment of the trial court on the ground that, although the petition in error with case-made attached has been filed herein for many months, no brief has been filed on behalf of the defendant and that his counsel failed to appear on March 21, 1945, at the time the case was set for oral argument, and, further, that the appeal is without merit and taken for delay only.
Section 9 of the Rules of the Criminal Court of Appeals provides:
"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment."
We have examined the record herein and find the evidence is sufficient to show the defendant guilty of the crime of burglary of a building belonging to the Ice Service Company, in the city of Duncan. The instructions fairly state the law of the case and there are no fundamental errors apparent in the record. No brief has been filed and no appearance on behalf of accused was made at the time the case was set for argument. The motion of the Attorney General is therefore sustained and the judgment of the district court of Stephens county is affirmed.
BAREFOOT, P. J., concurs. DOYLE, J., not participating.