BUTLER v. STATE

(Syllabus.)

1. Appeal and Error — Scope of Review in Absence of Briefs and Argument — Affirmance. Where an appeal is taken to this court and no appearance is made when the case is assigned for oral argument, and no briefs are filed, the record will be examined and if no fundamental error appears the judgment will be affirmed.

2. Indictment and Information — Amendment of Information. An information may be amended in matters of either form or substance when it can be done without prejudice to the substantial rights of the accused. No amendment shall cause any delay in the trial unless for good cause shown by affidavit.

3. Appeal and Error — Sufficiency of Conflicting Evidence to Sustain Conviction. Where there is substantial evidence to support verdict, the judgment of conviction will not be reversed on the ground of insufficiency of the evidence merely because evidence is conflicting.

4. Larceny — Evidence Sustained Conviction for Larceny of Domestic Animals. In a prosecution for larceny of domestic animals, evidence examined and held sufficient to sustain the verdict and judgment of conviction, and that no prejudicial error was committed on the trial.

BAREFOOT, J.

Defendant, Ivory Butler, was charged in the district court of McCurtain county with the crime of larceny of domestic animals; was tried, convicted, sentenced to serve two years in the State Penitentiary, and has appealed.

When this case was assigned for oral argument, no one appeared for the defendant, and no brief has been filed in his behalf.

When this case was called for trial, the county attorney was granted permission to amend the information by changing the name of the party from whom the yearling was alleged to have been stolen from W. R. Hewett to L. M. Mackey.

Title 22 O.S.A. 1941 § 304[ 22-304] provides:

"An information may be amended in matter of substance or form at any time before the defendant pleads, without leave, and may be amended after plea on order of the court where the same can be done without material prejudice to the right of the defendant; no amendment shall cause delay of the trial, unless for good cause shown by affidavit."

In construing this statute, we have often held that an information may be amended in matters of either form or substance when it can be done without prejudice to the rights of the accused. Herren v. State, 72 Okla. Cr. 254, 115 P.2d 258; Ward v. State, 34 Okla. Cr. 296, 246 P. 664; Hammons v. State, 47 Okla. Cr. 297, 298 P. 1076; Little v. State, 21 Okla. Cr. 1, 204 P. 305.

In the following cases it has been held that the name of the owner of the stolen property is not a material matter, and that the legal title to the property alleged to have been stolen is of no concern to the thief: Little v. State, supra; Dickson v. State, 28 Okla. Cr. 378, 231 P. 315; Teague v. State, 64 Okla. Cr. 369, 81 P.2d 331; Cassell v. State, 76 Okla. Cr. 79, 128 P.2d 1016.

There was a direct conflict in the evidence, the defendant testifying that he had raised the yearling and it was his property. Witnesses for the state testified that it was the property of Mr. Mackey, who had purchased it from Mr. Hewett. With this conflict in the evidence the verdict of the jury will not be set aside by this court on appeal. It is only when the evidence is insufficient to sustain the judgment and sentence that the court on appeal will set aside the verdict of the jury. This court has repeatedly held that where the evidence and the reasonable and logical inferences and deductions to be drawn from it are sufficient to convince the jury beyond a reasonable doubt of the guilt of the defendant, the verdict will not be set aside.

Finding no reversible error, the judgment and sentence of the district court of McCurtain county is affirmed.

JONES, P. J., and DOYLE, J., concur.