(Syllabus.)
1. Witnesses — Credibility of Witnesses Within Province of Jury. The credibility of the witnesses and weight and value to be given to their testimony is within the exclusive province of the jury to determine.
2. Appeal and Error — Sufficiency of Evidence Though Conflicting, to Sustain Verdict. The verdict will not be set aside where the evidence is conflicting and that on the part of the state is such that, if believed, a verdict of guilty would result.
JONES, J.
H.R. Overstreet was charged by an information filed in the county court of Kiowa county with the offense of driving a motor vehicle on a public highway while under the influence of intoxicating liquor; was tried, convicted, and, pursuant to the verdict of the jury, was sentenced to pay a fine of $1 and costs.
No appearance was made on behalf of the accused at the time the case was assigned for oral argument and no brief has been filed. In such a situation, under Rule No. 9 of this court, 22 O.S.A. c. 18 Appendix, we examine the record for fundamental error, and if none is found, the judgment will be affirmed.
The proof of the state showed that the accused, a farmer, was seen by two highway patrolmen driving his pick-up truck on Highway 62, near the east line of Kiowa county. The patrolmen stopped defendant because of the manner in which he was driving. Each of them testified he was intoxicated.
The defendant denied he was intoxicated and testified that he was bothered by hay fever and that his eyes were watering so badly he was wobbling his car on the road wiping his eyes. Evidently the defendant was a man of excellent reputation, as a large number of citizens testified to his good reputation in the community where he resided.
However, the jury saw the witnesses, heard the evidence, and rendered their verdict of guilty. A careful examination of the record discloses no prejudicial error was committed.
The judgment and sentence is affirmed.
POWELL, P.J., and BRETT, J., concur.