NOTT v. STATE

(Syllabus.)

1. Appeal and Error — Affirmance in Absence of Brief. Under the rules of this court where no brief is filed, the court will examine the record and in the absence of fundamental error, conviction will be affirmed.

2. Intoxicating Liquors — Conviction for Unlawful Possession Sustained. Record examined, and judgment and sentence of 30 days in the county jail and $75 fine affirmed.

BAREFOOT, P. J.

Defendant, H. W. Nott, was charged in the court of common pleas of Oklahoma county with the crime of unlawful possession of intoxicating liquor, to wit: twelve pints of tax-paid liquor; was tried by the court without the intervention of a jury and found guilty and sentenced to pay a fine of $75 and to serve 30 days in the county jail, and has appealed.

Defendant in his petition in error makes nine assignments of error, all of which may be considered under the proposition that there was not sufficient evidence to justify the court in finding the defendant guilty of unlawful possession of intoxicating liquor.

With respect to this contention, we deem it sufficient to say that we have carefully examined the record in this case and find nothing to sustain the contention of the defendant. The evidence shows that two Oklahoma City police officers, Roy Cook and G. E. Kaufman, saw defendant's automobile parked on a public street in Oklahoma City, about 10 o'clock p. m. on the 17th of October, 1939. Inside the car on the back seat, in plain view from the outside, they saw several bottles of liquor. They waited near the car for about 20 minutes and watched the defendant make several trips to the car before he was arrested. He admitted at the time of his arrest that the car belonged to him and that he drove it, but said that the liquor did not belong to him.

The defendant took the witness stand to testify in his own behalf, saying that he had not driven the car on that day and had not been near it before the time of his arrest. On cross-examination he admitted that he had been previously convicted three times for violations of the prohibition laws of the state. Other witnesses testified for defendant, saying that he had not been near the car that evening prior to his arrest.

This appeal was filed on the 15th day of June, 1940. No brief has been filed by defendant and no oral argument was made. Under the rulings of this court, if the defendant has not filed his brief or made oral argument it is only necessary to examine the record to see that no fundamental error which would deprive defendant of a fair and impartial trial has been made by the trial court. Smith v. State, 72 Okla. Cr. 314, 115 P.2d 925; Webb v. State, 72 Okla. Cr. 346, 116 P.2d 212; Stone v. State, 72 Okla. Cr. 148, 114 P.2d 184. From this statement it is clear that the trial court was justified in finding defendant guilty of unlawful possession of intoxicating liquor.

For the reasons above stated the judgment and sentence of the court of common pleas of Oklahoma county is affirmed.

JONES, J., concurs. DOYLE, J., absent.