Appeal from the District Court of Bryan County; Ralph B. Hodges, Judge.

James Odis Smith, plaintiff in error, was convicted of the Crime of Assault and Battery, assessed the punishment of 30 days in the County Jail and Thirty Dollars fine, and appeals. Affirmed.

W.L. Steger, Durant, for plaintiff in error.

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

BUSSEY, Judge.

¶1 The plaintiff in error, James Odis Smith, defendant below, was charged in the District Court of Bryan County, with the offense of Assault with a Deadly and Dangerous Weapon. He was tried by jury who found him guilty of the included Crime of Assault and Battery. From the judgment and sentence entered in accordance with the verdict of the jury, a timely appeal has been perfected to this Court.

¶2 This matter was set for Oral Argument on the 17th day of October, 1962, and neither the defendant nor his counsel appeared. No brief has been filed on behalf of the plaintiff in error and under such circumstances:

"When no counsel appears and no briefs are filed, the Court will examine the pleadings, the instructions of the court, and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears will affirm the judgment." Rule 9, O.C.R.

¶3 We have carefully examined the record in accordance with Rule 9, supra, and are of the opinion that the record is free from fundamental error.

¶4 The judgment and sentence appealed from is accordingly, affirmed.

NIX, P.J., and BRETT, J., concur.