Havenar v. State ( 1945 )

JONES, J.

The defendant, Leo Havenar, was charged in the district court of Washington county with the crime of murder; was tried, convicted of manslaughter in the first degree, and sentenced to serve 25 years in the State Penitentiary, and has appealed.

The defendant allegedly stabbed his brother, George Havenar, causing his death, on or about May 18, 1939. Under the evidence of the state, the homicide occurred while the two Havenar brothers were on a trip by taxi between the cities of Bartlesville and Nowata. Immediately after the alleged homicide, the defendant fled and was not arrested until after a lapse of more than two years.

The evidence showed that the defendant had been paroled from the Kansas State Prison at Lansing, on May 16, 1939, just two days before the homicide. The deceased was employed as a roustabout on an oil and gas lease near Nowata. On the afternoon of the homicide, defendant and deceased Avere both considerably intoxicated.

The taxi driver Avho drove them from Bartlesville to Nowata testified that he saw the defendant with a knife in his hand and saw blood on the deceased’s shirt Avhile they Avere in his taxicab. He testified that defendant admitted having stabbed his brother. When they arrived in NoAvata, George Havenar Avas dead. The taxi driver testified that defendant threAV a knife out of the car and that, later, after it was disclosed that George Havenar Avas dead, he took the sheriffs of NoAvata and Washington counties to the spot AAdiere the knife was throAvn. The officers found the knife at that place. A doctor of Nowata testified that the deceased met his death by a single stab Avound in the heart.

There is other evidence in the case, including the testimony of the defendant, which presented a conflict for the determination of the jury.

There has been no brief filed in this case and no appearance made on behalf of the defendant at the time the case was set for oral argument.

Where defendant appeals from a judgment of conviction, and neither any brief is filed nor appearance for oral argument made, we do not consider it the duty of this court to go into a careful examination of the evidence to determine whether or not the trial court erred in the admission or rejection of testimony. This court will examine the record for jurisdictional errors. If no fundamental error appears, the judgment will be affirmed.

We have examined the record and find that the information is sufficient to charge the crime of murder. While the evidence against the defendant is largely circumstantial, it is sufficient to sustain the judgment and sentence and the instructions of the court were applicable to the law and the facts. Upon the record before us, we have discovered no error which would warrant a reversal of the judgment, and it appears that the defendant was accorded a fair and impartial trial.

The judgment of the district court of Washington county is affirmed.

BAREFOOT, P. J., concurs. DOYLE, J., not participating.