Opinion
No. A-148.
Opinion Filed December 3, 1910.
(Syllabus by the Court.)
APPEAL — Failure to File Briefs — Affirmance. Where a defendant appeals from a judgment of conviction in a felony case, and no briefs are filed or argument presented, this court will make an examination of the record, and, if no error is apparent, will affirm the case.
Appeal from District Court, Marshall County; D.A. Richardson, Judge.
Stoke R. Walling was convicted of manslaughter, and appeals. Affirmed.
Stoke R. Walling was indicted in the United States Court within and for the Southern District of the Indian Territory, at Ardmore, at the April term, A.D. 1907, for the murder of one Moses T. Jackson, on the 29th day of March, 1907, within that part of said jurisdiction which was organized as Marshall county when Oklahoma was admitted as a state. Under the provisions of the enabling act and the state Constitution, he was tried in the district court of Marshall county. On December 1, 1908, the jury sworn to try the case returned a verdict, finding the defendant guilty of manslaughter, and assessed his punishment at imprisonment for a period of 10 years and a fine of $500.
A motion for a new trial was filed, and on December 3, 1908, the same was overruled, and the court rendered judgment and sentence in accordance with said verdict, from which judgment an appeal was properly perfected by filing in this court on April 27, 1909, a petition in error with case-made attached and proof of service of notice of appeal. No briefs have been filed by plaintiff in error, and no appearance was made on his behalf when the cause was called for oral argument.
On August 29, 1910, the Attorney General filed a motion to affirm the judgment for want of prosecution. It is apparent that the appeal in this case has been substantially abandoned, and for this reason we would be justified in sustaining the action of the court below without further examination of the record. Nevertheless, in deference to the gravity of the case, we have deemed it our duty to fully and carefully examine the record.
Having so examined the entire record, and finding no substantial error therein, and that no substantial right of the defendant has been lost, and believing that a fair and impartial trial was had, the judgment of the district court of Marshall county is therefore in all things affirmed.
FURMAN, PRESIDING JUDGE, concurs; RICHARDSON, JUDGE, who presided in the court below, disqualified and not sitting.