(Syllabus.)
Appeal and Error-Appeal Without Merit-Judgment Affirmed. Where examination of record shows that appeal is wholly without merit and apparently taken for purpose of delay only, motion to dismiss appeal filed by state will be sustained and appeal dismissed or judgment affirmed.
Appeal from District Court, Oklahoma County; Lewis R. Morris, Judge.
Bennie J. Carr was convicted of manslaughter in the first degree, and he appeals. Affirmed.
Mathers & Mathers, of Oklahoma City, for plaintiff in error.
Randell S. Cobb, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
JONES, J. The defendant, Bennie J. Carr, was charged by information filed in the district court of Oklahoma county, on August 23, 1943, with the crime of murder. Defendant was arraigned on August 28, 1943, and entered a plea of not guilty. Case was set for trial on September 20, 1943, and on that date, defendant appeared in person and by his attorney and withdrew his plea of not guilty and entered a plea of guilty to manslaughter in the first degree.
Defendant and his counsel agreed to submit the facts to the court and leave the punishment to the discretion of the court. The court heard the arguments and then set the punishment at 50 years in the State Penitentiary. Later, two days after the sentence had been pronounced, defendant and a new counsel filed a motion to set aside the judgment and withdraw the plea of guilty and enter a plea of not guilty. It was alleged that defendant understood
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the penalty on a plea of guilty would not be more than 10 or 20 years, but that this 50 year sentence was equivalent to a life sentence to a man 45 years of age, as the defendant was. Motion to set aside judgment was overruled and a notice of appeal to the Criminal Court of Appeals was filed.
The facts in the case are as follows:
On the night of August 7, 1943, the defendant was at the beer garden of Lizzie Mitchell, his common-law wife, when Willie Jackson came in and ordered some beer and refused to pay for it. Jackson and Lizzie Mitchell got into an argument and Jackson slapped her and knocked her down. After doing this, he turned to the defendant and asked him what he was going to do about it, and walked out. Bennie Carr, the defendant, went into the back of the beer garden, got a shotgun and started after Jackson. He saw him in front of a beer parlor down the street. Willie Jackson was sitting outside of this place when Bennie Carr drove up in his automobile. The defendant got out of his car and shot at Willie Jackson, but the bullets missed him and went through the window of the beer parlor and hit a third person by the name of Lenville Green. Green died from a bullet wound through the heart. Willie Jackson escaped and ran down the street and Bennie Carr went on back to Lizzie Mitchell's place and didn't know that he had killed Green until the next day.
No brief has been filed and no appearance for oral argument was made on behalf of defendant. An examination of the record shows that the appeal is without merit and that the judgment of the district court of Oklahoma county should be affirmed. It is so ordered.
BAREFOOT, P. J., concurs. DOYLE, J., not participating.
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