(Syllabus.)

1. Appeal and Error-Scope of Review in Absence of Briefs and Argument-Affirmance. Where the defendant appeals from a judgment of conviction and no briefs are filed, nor argument

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presented, this court will examine the evidence and ascertain if it supports the verdict, and will make an examination of the information, instructions excepted to, and the judgment, and if no material error is apparent, the judgment will be affirmed.

2. Assault and Battery-Evidence Sustained Conviction for Assault with Dangerous Weapon. Record examined, and held: No fundamental error is found and evidence is sufficient to sustain conviction.

Appeal from District Court, Harmon County; Jno. B. Wilson, Judge.

John A. Hiett was convicted of assault with a dangerous weapon, and he appeals. Affirmed.

Harry C. Hicks, of Hollis, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., for defendant in error.

JONES, J. The defendant, John A. Hiett, was charged in the district court of Harmon county with the crime of assault with a dangerous weapon, was tried, convicted and sentenced to serve six months in the county jail, and has appealed.

On September 2, 1941, petition in error with case-made and proper proof of notices was filed in this court. No briefs have been filed and no appearances for oral argument made.

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 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.

We have carefully examined the record and no fundamental error appears. In fact, there are no legal questions

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presented by the record. It is admitted that the defendant assaulted the prosecuting witness. There was a sharp dispute in the testimony of the witnesses for the state and the defendant as to whether the assault was provoked by actions of the prosecuting witness. This was an issue for the determination of the jury, and this court will not interfere with the verdict under such circumstances. It appears that the defendant was accorded a fair and impartial trial.

The judgment of the district court of Harmon county is accordingly, in all things, affirmed.

BAREFOOT, P. J., and DOYLE, J., concur.