Appeal from the District Court, Kay County, C.L. Armstrong, J.

Bruce B. Potter, Blackwell, for plaintiffs in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Ned Looney, County Atty., Kay County, Ponca City, for defendant in error.

POWELL, Presiding Judge.

¶1 The defendants below, plaintiffs in error here, were charged jointly with second degree burglary by information filed in the district court of Kay County, were tried before a jury and each found guilty as charged, and each was assessed punishment at imprisonment in the State penitentiary for a term of two years.

¶2 Appeal was perfected to this court on May 4, 1953, but no brief has been filed in support of the petition in error. On September 30, 1953, when the case was set down for oral argument, counsel for the defendants failed to appear. Under such circumstances the judgments entered against each were subject to affirmance, unless this court in an examination of the record would discover fundamental error requiring reversal. Fitzgerald v. State, 77 Okl.Cr. 409, 142 P.2d 131; Lombness v. State, Okl.Cr., 243 P.2d 389.

¶3 We have examined the record closely, and while the evidence was primarily circumstantial, there was ample circumstantial evidence to support the verdict of the jury and judgment of the court based thereon.

¶4 One Cleo Gracia owned and operated Cleo's Tavern in Blackwell, Oklahoma. In the evening of the night of the breaking and entry of the tavern the defendants visited it and each purchased a bottle of beer from the prosecuting witness. The next day she found that some persons had broken in her west door, stolen several cases of Stag beer, several cartons of assorted brands of cigarettes, and some change from a juke box, and elsewhere, estimated at around $50.

¶5 It was shown that the defendants had borrowed the car of John Martis, son of Alta Hazel Giles, the night of the burglary, awakening him about midnight for the purpose. Mrs. Giles became suspicious and commenced to look for the car when it was not returned for some time, and walked to the Bert Lockwood residence a short distance away and found the car. Mrs. Giles swore that the back was piled high with cases of beer and that she opened one and found it to contain Stag beer. She drove the car home, but her son got up and drove it back for the defendants to remove the beer, which they did. The defendants then came on to the Giles home and Bradshaw was very angry with Mrs. Giles. The defendant Jones, according to Mrs. Giles, told her that the beer came from "Cleo's" which was the place that was robbed. Bradshaw, according to the testimony of undersheriff Butterfield, admitted to him in a casual conversation that he helped drink Cleo's beer, but did not steal it.

¶6 The defendants testified and denied breaking in Cleo's Tavern. They claimed that the beer was not Stag beer but home brew and that they borrowed the car to go get the home brew which one of the defendants had made and stashed out. They decided to have a beer party that night, which was the night of the burglary. A number of persons said to have helped drink the beer testified to it being home brew. Other witnesses testified for the defendants.

¶7 The court gave a proper instruction on circumstantial evidence. The jury heard and observed the witnesses. This court cannot discover any fundamental error.

¶8 The judgment of the district court of Kay County is affirmed.

JONES and BRETT, JJ., concur.