Fitzgerald v State

Fitzgerald v State
1943 OK CR 107
142 P.2d 131
77 Okl.Cr. 409
Decided: 10/13/1943
Oklahoma Court of Criminal Appeals

(Syllabus.)

Appeal and Error-Failure of Appellant to File Brief-Affirmance.

Appeal from County Court, Kiowa, County; Clifford E. Huff, Judge.

Swanie, Fitzgerald was convicted of the offense of unlawful possession of intoxicating liquor, and he appeals. Affirmed.

See, also, 75 Okla. Cr. 192, 129 P.2d 867.

Zink & Cunningham, of Hobart, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

Page 410

JONES, P. J. The defendant, Swanie Fitzgerald, was charged by information in the county court of Kiowa county with the crime of unlawful possession of intoxicating liquor, was tried, convicted and sentenced to serve 30 days in the county jail and to pay a fine of $50.

This case was assigned for oral argument and submission on July 17, 1942. No brief has been filed in this case and no appearance on behalf of the defendant made at the time said cause was set for hearing.

Where the defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors, if no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the offense of unlawful possession of intoxicating liquor. Two officers of Kiowa county, armed with a search warrant, made a search of defendant's premises. They found three pints and five half pints of whisky in a stew pan suspended by a rope in the well of the defendant. No evidence was offered on behalf of defendant. The instructions appear to be applicable to the law and facts. On the record before us we have discovered no error which would warrant a reversal of the judgment of conviction and it appears that defendant was accorded a fair and impartial trial.

The judgment of the county court of Kiowa county is accordingly affirmed.