Rieckert v. State

JONES, P. J. The defendant, Reuben Rieckert, was charged in the district court of Garfield county with the crime of assault with intent to commit a felony, was tried, convicted and sentenced to serve five years in the State Penitentiary, and has appealed. The appeal was filed in this court on May 25, 1942. On March 24, 1943, said case was assigned for oral argument. No appearance was made on that occasion and no briefs have been filed on behalf of defendant. Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument presented, this court - will examine the evidence and ascertain, if it supports the verdict, and will'make an examination of the *112 information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed. Epps v. State, 69 Okla. Cr. 460, 104 P. 2d 262; Hiett v. State, 75 Okla. Cr. 190, 129 P. 2d 866. An examination of this record discloses that defendant was positively identified as being the individual who struck the complaining witness over the head with a large bottle concealed in a paper sack, knocking the complainant down but not rendering him unconscious. That the defendant attempted to rob the complainant but the complainant struggled so fiercely that the defendant desisted in his attack upon the complainant and fled. He was arrested a few minutes later and identified as the assailant. The defense was in the nature of an alibi. We have carefully considered the record and find no fundamental error. The evidence is sufficient to support the judgment. It is therefore ordered that the judgment of the district court of Garfield county be and the same is hereby affirmed. BAREFOOT, J., concurs. DOYLE, J., not participating.