State v. Starcher , 39 Idaho 327 ( 1924 )

BUDGE, J.

Appellant was convicted of the crime of unlawful possession of intoxicating liquor. A motion for a new trial was overruled. From the judgment of conviction and from the order overruling the motion for a new trial this appeal is prosecuted.

The transcript on appeal was filed in this court on March 21, 1923, but no 'brief has been filed, by appellant. When the cause was reached upon the calendar and set down for hearing appellant was neither present dor represented by counsel. Under such circumstances and in accordance with Rule 48 this court may, in its discretion, either dismiss the appeal, which results in an affirmance of the judgment below or examine the record for fundamental error and render its decision on the merits. We have therefore examined the record but find no fundamental error. The judgment must be affirmed, and it is so ordered.

McCarthy, C. J., and William A. Lee and Wm. E. Lee, 'JJ., concur.