BUNCH v. STATE

(Syllabus.)

Appeal and Error — Review — Failure to File Brief — Affirmance. Where defendant appeals from a judgment of conviction and no briefs are filed, Criminal Court of Appeals will examine record for fundamental errors, and if none appear, judgment will be affirmed.

BAREFOOT, J.

Defendant, O. H. Bunch, was charged in the municipal criminal court of the city of Tulsa with the offense of assault and battery, waived a jury and was tried before the court; adjudged guilty and his punishment assessed at a fine of $48 and costs, and he has appealed.

At the time this case was assigned for oral argument, counsel for defendant appeared and argued the same. No briefs have been filed, either by the defendant, the city of Tulsa, or the state.

The evidence of the prosecuting witness is to the effect that he was struck by the defendant, who was a street-car conductor, in the city of Tulsa, with his money-changer when witness attempted to leave the street-car. There was a sharp conflict in the testimony of the prosecuting witness and the defendant as to the cause of the controversy. Defendant admits he hit the prosecuting witness with his money-changer; and under the evidence of the state, there is no question as to the guilt of the defendant. The weight to be given to the evidence and the credibility of the witnesses was clearly for the determination of the trial court. His decision is as binding as the verdict of a jury.

At the time of oral argument, it was contended that the venue of the action was not proved as to being in the city of Tulsa. We have examined the record, and are of the opinion that sufficient evidence was introduced to prove the venue. The witnesses, when asked with reference to the affair, referred to the streets as "Fourth Street," "Peoria" and "Boston" avenues. All of the witnesses gave their addresses. This evidence was sufficient to sustain the venue, and the allegation of the information, which stated "within the corporate limits of the city of Tulsa, Tulsa County, Oklahoma."

Finding no error in the record, the judgment of the municipal criminal court of the city of Tulsa is affirmed.

JONES, P. J., concurs. DOYLE, J., not participating.