Opinion
No. A-10945.
January 19, 1949. Rehearing Denied April 13, 1949.
(Syllabus.)
1. Appeal and Error — Judgment Affirmed Where no Appearance and no Briefs Filed. Where no appearance is made at time cause is set for oral argument, and no briefs are filed, under the rules of the Criminal Court of Appeals the record will be examined, and if no jurisdictional errors appear, the judgment will be affirmed.
2. Same — Scope of Review by Criminal Court of Appeals. In felony case, Criminal Court of Appeals will consider entire record to determine whether defendant has been given a fair trial, even though no brief has been filed in his behalf.
3. Intoxicating Liquors — Sufficiency of Evidence to Sustain Conviction for Unlawful Possession of Intoxicating Liquor. Record examined; evidence held sufficient to sustain conviction for unlawful possession of intoxicating liquor, a second offense, and judgment and sentence is affirmed.
Appeal from District Court, Blaine County; Tom R. Blaine, Judge.
Jim Pierce was convicted of unlawful possession of intoxicating liquor, and he appeals. Affirmed.
Fred V. Shirley, of Watonga, and David Tant, of Oklahoma City, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., for defendant in error.
The defendant in error, Jim Pierce, was charged in the district court of Blaine county with the unlawful possession of intoxicating liquor, a second offense, was tried, convicted and pursuant to the verdict of the jury was sentenced to serve 120 days in the county jail and pay a fine of $1,250.
There has been no brief filed on behalf of the defendant and no appearance was made in his behalf at the time the cause was assigned for oral argument.
Under Rule 9 of the Criminal Court of Appeals it is stated:
"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 carefully examined the record. The information sufficiently charges the offense. The instructions of the court are substantially correct. The testimony of the state showed that a large amount of whisky and other intoxicating liquors were found stored in a skating rink in the city of Watonga which belonged to the defendant. The defendant lived in a house next door to the skating rink and had the keys to the skating rink in his possession at the time the officers, who were armed with a search warrant, came to his place to search for intoxicating liquors. The defendant did not testify in his own behalf, but his evidence consisted of testimony of various witnesses who had stored various articles of personal property in the skating rink of defendant during the period of time involved in the prosecution. The theory of the defendant was that under the evidence the intoxicating liquor could just as well have belonged to any one of the various parties who owned personal property stored in the skating rink as to have belonged to the defendant. The intoxicating liquor was found locked in two large trunks which were opened by the officers.
The evidence properly raised an issue for the determination of the jury. It is sufficient to sustain the judgment. No briefs having been filed, and no specific errors of law having been called to our attention, it is our conclusion that the defendant had a fair and impartial trial, and the judgment and the sentence of the district court of Blaine county is accordingly affirmed.
BAREFOOT and BRETT, JJ., concur.