(Syllabus.)

1. Appeal and Error — Appeal Dismissed for Failure of Appellant to File Brief, Where an accused appeals from a city court to the court of common pleas, and the transcript discloses that his appeal was dismissed for nonappearance,

Page 206

and appellant fails to file a brief in this court within thirty days in support of petition in error and transcript, as provided by rule six of this court, this court will examine the transcript for error apparent in the record, and if no fundamental error is apparent the appeal will be dismissed.

2. Same — Where no Evidence or Stipulation Covering Questions of Fact, Nothing Is Presented for Review. Where an appeal is by transcript and the only ground for appeal presents a question of fact and there being no evidence or stipulation covering the point raised, nothing is presented to this court for review.

Appeal from Municipal Court, Oklahoma City, and Court of Common Pleas.

Defendant was convicted of vagrancy and operating motor vehicle without state driver's license, and he appeals. Appeal dismissed.

Jack L. Spivey, Oklahoma City, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

POWELL, J.

This is an appeal by transcript from the court of common pleas of Oklahoma County, where cases Nos. 1351 and 1352 have been consolidated. The transcript discloses that the accused was charged in the municipal court of the city of Oklahoma City in one case with the offense of "vagrancy by no visible means of support in violation of City ordinance, chapter 7, section 241, revised edition of 1948", and in the other case with the offense of "operating a motor vehicle without a state driver's license." He was convicted of both charges in the city court, and appealed to the court of common pleas of Oklahoma County. The record discloses that when these cases came on for trial, in the court of common pleas, pursuant to assignment, that the defendant in each case was called three times to appear and defend, but came not and each appeal was therefore dismissed.

The transcript was filed in this court on March 17, 1952, and a brief was due not later than April 17, 1952. The case was set for oral argument for September 17, 1952. To date no brief has been filed and no one appeared to argue the case.

The only point raised in the petition in error involves the contention that it was an abuse of discretion on the part of the trial court in refusing to set aside the dismissal when counsel was but fifteen minutes late, and offered the court a valid excuse. There is no record to show whether counsel was fifteen minutes late or fifteen days late, or what was the excuse.

There is also the question of the validity of the consolidation of the cases even though the same question for the purpose of the appeal is involved in both cases. This question does not require treatment.

The record discloses no error against the accused. For reasons stated, the appeal is dismissed.

BRETT, P.J., and JONES, J., concur.

Page 207