Opinion
No. A-11566.
January 23, 1952.
(Syllabus.)
1. Trial — Demurrer Proper Pleading to Challenge Insufficiency of Information. A demurrer is proper pleading to challenge insufficiency of an information where it is contended that facts alleged do not constitute a public offense.
2. Intoxicating Liquors — Drunk Driving — Sufficiency of Evidence. Conviction of driving automobile on public highway while under influence of intoxicating liquor is sustained by evidence.
3. Appeal and Error — Sufficiency of Evidence, Though Conflicting, to Sustain Finding of Jury of Guilt. Where evidence is conflicting, but there is abundant competent evidence to show defendant's guilt of crime charged, finding of jury will be sustained on appeal.
Appeal from Court of Common Pleas, Tulsa County; Lewis C. Johnson, Judge.
George Lyons was convicted of driving a motor vehicle while under the influence of intoxicating liquor, and he appeals. Affirmed.
Harold McArthur, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
George Lyons was charged in the county of common pleas of Tulsa county with the offense of operating a motor vehicle upon the public highways of Tulsa county while under the influence of intoxicating liquor. A jury found him guilty and fixed his punishment at a fine of $50, and he has appealed.
Judgment and sentence was pronounced February 1, 1951. The appeal was lodged in this court on April 16, 1951, and under the rules of the court a brief was due to be filed within 30 days. No appearance was made when the case was assigned for oral argument, and no brief has been filed.
Under the circumstances, we have read the complete record, and have carefully examined the pleadings, the instructions of the court, and the judgment and sentence to see whether there was fundamental error in the proceedings. The defendant did not file a demurrer or motion to quash the information.
The record shows that the defendant was arrested by two highway patrolmen, at about 11:35 on the night of October 8, 1950, in the city of Tulsa, according to their testimony, in a very intoxicated condition. The defendant denied that he was intoxicated, but claimed that his dizzy condition was caused by a blow in the mouth and his head hitting the pavement in a fight he had engaged in at a beer tavern about 30 minutes prior to his arrest. This presented an issue for determination of the jury.
We find no fundamental error in the record, and the judgment of the court of common pleas of Tulsa county is affirmed.
BRETT, P.J., and JONES, J., concur.