GIVENS, J.
Appellant was convicted September 20, 1933, of forcible rape; sentenced September 26, 1933; and appealed to this court September 23, 1933; transcript was filed herein March 14, 1934: the case was set for hearing on appeal for September 10, 1934, appellant's counsel being notified thereof; at the time the case was reached for oral argument on said day, no brief on behalf of appellant had been filed nor was he represented in court by counsel.
Rule No. 48 of this court provides in part as follows:
"When a cause is reached on the calendar, and neither side has submitted a brief or statement of points and authorities or is represented by counsel in court, the appeal will be dismissed . . . . . "
We have, however, examined the record and find no fundamental error; therefore the appeal is dismissed, which results in the affirmance of the judgment, and it is so ordered. ( State v. Starcher, 39 Idaho 327, 227 P. 386; State v. Bariger, 39 Idaho 328, 227 P. 34; State v. Weeks, 41 Idaho 105, 237 P. 702.)
Budge, C. J., and Morgan, Holden and Wernette, JJ., concur.