Opinion
No. A-11666.
June 11, 1952.
(Syllabus.)
Appeal and Error — Affirmance in Absence of Briefs or Appearance. Under the rules of this court, where no briefs are filed nor appearance for oral argument is made, the record will be searched for fundamental error only, and if none is found, the judgment will be affirmed.
Appeal from Court of Common Pleas, Tulsa County; Stanley C. Edmister, Judge.
Walton Dee McDaniel was convicted of driving while under the influence of intoxicating liquor, and he appeals. Affirmed.
Frank Hickman, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for defendant in error.
Walton Dee McDaniel was charged by information filed in the court of common pleas of Tulsa county, of driving a motor vehicle while under the influence of intoxicating liquors, was tried before a jury on September 18, 1951, and his punishment fixed at a fine of $100. The petition in error and record was filed in this court on November 8, 1951, and a brief was due to be filed herein not later than sixty days thereafter, but to date no brief has been filed, nor were appearances made when this case came on for oral argument at the March, 1952 docket of this court.
The defendant in this case voluntarily took the breath test, or intoximeter test to determine the alcoholic content of his blood stream. It showed .22 per cent, when it was shown by expert testimony that a person with .15 per cent alcohol in the blood stream is considered under the influence of intoxicating liquor. This court recently in the case of Toms v. State, 95 Okla. Cr. 60, 239 P.2d 812, approved the breath test where voluntarily taken by a defendant.
We find no fundamental error in the record, and while the evidence of the State's witnesses in material respects was denied by the defendant, there was ample evidence to support the verdict of the jury. Skaggs v. State, 84 Okla. Cr. 443, 184 P.2d 121, and cases cited; Sandy v. State, 94 Okla. Cr. 80, 231 P.2d 374.
The case is affirmed.
BRETT, P.J., and JONES, J., concur.