Opinion
No. A-5426.
Opinion Filed August 24, 1925.
Appeal and Error — Where Appellant Becomes Fugitive from Justice, Appeal Dismissed. Where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider his appeal, unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case; and, where a defendant makes his escape from the custody of the law, and becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion, dismiss the appeal.
Appeal from County Court, Carter County; A.H. Hardy, Judge.
F.D. McPhetridge was convicted of unlawful possession of intoxicating liquor, and he appeals. Appeal dismissed, and cause remanded.
See, also, 30 Okla. Cr. 41, 234 P. 785.
Champion, Champion George, for plaintiff in error.
George F. Short, Atty. Gen., and G.B. Fulton, Asst. Atty. Gen., for the State.
Plaintiff in error F.D. McPhetridge was convicted of unlawful possession of intoxicating liquor, and in accordance with the verdict of the jury was sentenced to pay a fine of $50 and be confined in the county jail for 30 days. From the judgment he appealed by filing in this court, January 7, 1925, a petition in error with case-made.
The Attorney General has filed a motion to dismiss the appeal as to plaintiff in error McPhetridge on the ground that he a fugitive from justice, which motion is supported by the affidavit of E.C. London, sheriff of Carter county, in part as follows:
"At the same term of court and on the 9th day of October, 1923, F.D. McPhetridge was tried and convicted in another case wherein he was charged with a violation of the liquor laws. This second case resulted in a conviction, and the defendant was given a fine of $500 and a jail sentence of 6 months, from which judgment he failed to lodge his appeal within the time allowed by law. That on the 14th day of April, 1925, he was committed to the county jail of Carter county to serve the sentence of the court imposed in this second case, and was sent to the road camp on being committed, and thereafter, on the 24th day of June, 1925, escaped from the guard in charge, and is now and has been since said 24th day of June, 1925, a fugitive from justice."
The uniform holding of this court is that, where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal, unless the defendant is where he can be made to respond to any judgment or order which may be entered and rendered in the case; and, where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice pending the determination of his appeal, this court will on proper motion dismiss his appeal. Young v. State, 16 Okla. Cr. 116, 180 P. 872; McKellop v. State, 18 Okla. Cr. 326, 194 P. 457.
The motion to dismiss was filed August 3, 1925, and no response or answer thereto on behalf of this plaintiff in error has been filed.
Upon the uncontroverted facts this plaintiff in error has waived his right to have his appeal in this court considered and determined, and the appeal is therefore dismissed, and the cause remanded to the county court of Carter county.
BESSEY, P.J., and EDWARDS, J., concur.