
    Earl Ernest MILLER, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
    No. A-12565.
    Criminal Court of Appeals of Oklahoma.
    March 19, 1958.
    
      Charles W. Stubbs, Oklahoma City, for plaintiff in error.
    Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.
   POWELL, Judge.

Earl Ernest Miller was charged in the district court of Pottawatomie County with the crime of operating a motor vehicle upon a public highway of Oklahoma while under the influence of intoxicating liquor, second and subsequent offense; was convicted, but the jury being unable to agree upon the punishment to be assessed, left that to the court, who fixed the penalty at a fine of $100 and imprisonment in the State Penitentiary for one year.

Counsel for the plaintiff in error filed petition in error and case-made in this court on December 3, 1957, the last day of the six months statutory period for filing. A brief was due to be filed on January 3, 1958, but to date no brief has been filed, and no one appeared to represent defendant when the case came on for oral argument, after regular assignment, on March 12, 1958. Sisk v. State, 97 Okl.Cr. 229, 261 P.2d 629; Stephens v. State, 96 Okl.Cr. 230, 252 P.2d 182; McDaniel v. State, 95 Okl.Cr. 311, 245 P.2d 771; Connelly v. State, 94 Okl.Cr. 370, 236 P.2d 278.

We have carefully examined the record. The evidence by two highway patrolmen was that defendant was intoxicated when arrested on U. S. Highway 270, one and three-fourths miles west of Shawnee, for a traffic offense. An intoximeter test made by chemist P. L. Ward showed a blood alcohol reading of .31 per cent by weight. It was also shown by the court clerk of Caddo County that defendant had previously been convicted in case No. 8976 in the county court of Caddo County of driving a motor vehicle while under the influence of intoxicating liquor.

Defendant testified, and while denying that he was intoxicated, admitted the conviction in Caddo County, as well as a number of convictions in other counties on charges of drunken driving.

We find no fundamental error in the record, and in accordance with the uniform holdings of this court, must and do affirm the verdict and judgment appealed from.

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