Arnett v. State

1957 OK CR 69, 313 P.2d 540, 1957 Okla. Crim. App. LEXIS 185

Opinion

BRETT, Presiding Judge.

Plaintiff in error, James A. Arnett, defendant below, was charged by information in the Municipal Criminal Court of the City of Tulsa, Oklahoma, with the offense of operating a motor vehicle while under the influence of intoxicating liquor. He was tried by a jury, convicted, and his punishment fixed at ten days confinement in the county jail and a fine of $100. Judgment and sentence were entered accordingly, from which this appeal has been perfected.

The defendant makes but one contention which relates to a purported irregularity in the proceedings when the jury asked for additional instructions which it is urged the court gave orally. Defendant contends that under 12 O.S.1951 § 582, the same should have been in writing, and relies on Bird v. State, 22 Okl.Cr. 263, 210 P. 925. In his brief he makes the observation there was no record made because there was no court reporter there at the time.

This omission constitutes a fatal defect in this appeal. This Court has repeatedly held:

“A matter assigned as error in the motion for a new trial and in the petition in error, but not shown by the case-made to be true, cannot be considered in the appellate court.” Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258, 259; Jackson v. State, 86 Okl.Cr. 420, 193 P.2d 895.

For the foregoing reason, the judgment and sentence is affirmed.

POWELL and NIX, JJ., concur.