(Syllabus.)

1. Appeal and Error — Sufficiency of Conflicting Evidence to Show Guilt of Accused. Criminal Court of Appeals will not interfere with the verdict of the jury where there is a conflict of the evidence and the evidence of the state overwhelmingly shows the guilt of the accused.

2. Automobiles — Drunk Driving — Sentence of One Year in Penitentiary not Excessive. Sentence of one year imprisonment in the State Penitentiary where the jury left the punishment to be fixed by the court was not excessive for the crime of driving an automobile on the highway while under the influence of intoxicating liquor where the record disclosed that defendant had previously been twice convicted for the same offense.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

William Dan Cobb was convicted of drunk driving, and he appeals. Affirmed.

Warren H. Edwards, Oklahoma City, Okla., for plaintiff in error.

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

JONES, J.

The defendant, William Dan Cobb, was charged by an information filed in the district court of Oklahoma county with the crime of driving an automobile upon the public highway while under the influence of intoxicating liquor after having previously been twice convicted for the same offense; was tried, found guilty by a jury who left the sentence to be fixed by the court. The trial court thereupon sentenced the defendant to serve one year imprisonment in the state penitentiary and he has appealed.

No brief has been filed on behalf of the defendant and no appearance was made in his behalf at the time the case was assigned for oral argument. Under the rules of this court, under such circumstances, we search the record for fundamental error only and if none is found the judgment will be affirmed. Rule 9.

Two highway patrolmen testified they saw the defendant driving an automobile, about a mile east of Edmond, which was weaving back and forth across the center line; they stopped the defendant and he was intoxicated. Counsel for defendant stipulated with the county attorney that the defendant had been convicted of the offense of driving his automobile while under the influence of intoxicating liquor on February 6, 1940, in the district court of Osage county and that he was likewise convicted in the District court of Payne county for a similar offense on December 29, 1948.

The instructions of the court fairly submitted the issues to the jury. It was contended that the punishment was excessive, but one year imprisonment upon a third conviction for this offense, even though no traffic accident was involved and no one was injured, does not appear to us to be excessive. It would appear to be fortunate that under the circumstances related by the highway patrolmen no one was struck by the accused.

The judgment and sentence of the district court of Oklahoma county is affirmed.

BRETT, P.J., and POWELL, J., concur.

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