(Syllabus.)

Appeal and Error — Review — Affirmance Where no Briefs Filed. Where an appeal has been taken from a conviction and no briefs are filed, this court will examine the record, and if no fundamental errors were committed the judgment of the trial court will be affirmed.

Appeal from District Court, Custer County; E.L. Mitchell, Judge.

Arthur Leary was convicted of assault and battery with a deadly weapon, and he appeals. Affirmed.

Darnell & La Rue, for plaintiff in error.

J. Berry King, Atty. Gen., for the State.

DAVENPORT, J. The plaintiff in error, hereinafter called the defendant, was convicted in the district court of Custer county, on a charge of assault and battery, with intent to injure without intent to kill, without justifiable or excusable cause, and his punishment fixed at imprisonment in the state penitentiary for a term of one year. From the judgment the defendant has appealed to this court.

The petition in error, with case-made attached, was filed in this court on September 28, 1928. No brief has been filed in support of the errors assigned. The record in this case has been carefully examined, and we find that the information was sufficient to charge an offense; that the testimony is sufficient to show the defendant guilty; and that the defendant was accorded a fair and impartial trial.

Where no brief is filed and no personal appearance made, this court will presume that the case is without

Page 27

merit or has been abandoned. No fundamental or prejudicial errors appearing in the record, the judgment of the trial court is affirmed.

EDWARDS, P.J., and CHAPPELL, J., concur.