Opinion
No. 25876.
June 4, 1952.
Appeal from the District Court, Kaufman County, A.
W. E. Pinkston, Dallas, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
This is an appeal from a conviction for murder, with punishment assessed at ten years in the penitentiary.
Notice of appeal to this court was given on March 11, 1952, at the time of passage of sentence.
The state moves to dismiss the appeal because of appellant's escape from custody pending the appeal. As supporting the motion, the state presents the affidavit of the sheriff of Kaufman County showing that on April 22, 1952, appellant escaped from his jail cell and was thereafter recaptured in another county and returned to custody.
Under the express and mandatory provisions of Art. 824, Vernon's C.C.P., an escape from custody automatically operates to terminate the jurisdiction of this court over an appeal by the escapee. The statute also provides for setting aside the order of dismissal upon the voluntary return of the escapee within ten days to the officer from whom he escaped.
The direct question here involved was before this court in Pendergrass v. State, 92 Tex.Crim. R., 244 S.W. 513, wherein we held that a recapture after being at liberty one day was not a voluntary return within the meaning of the statute.
Accordingly, the state's motion to dismiss the appeal is well taken and the appeal is dismissed.
Opinion approved by the court.