Summary
In Harrelson v. State, 222 Miss. 514, 76 So.2d 516 (1954), which was a capital case we again overruled a similar motion on behalf of the state and adhered to the rule announced in Harding, supra.
Summary of this case from Jones v. StateOpinion
No. 39410.
December 20, 1954. ON MOTION TO DISMISS APPEAL
1. Appeal — criminal law — cause remanded to files — defendant escaped custody.
Supreme Court would not dismiss appeal from felony conviction where defendant had escaped from custody and was still at large, but case would be remanded to files to be brought up again, on proper motion, if and when appellant was again in custody.
Headnote as approved by Hall, J.
APPEAL from the circuit court of Calhoun County; TAYLOR H. McELROY, Judge.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The motion to dismiss appellant's appeal should be sustained for the reason that after the conviction of appellant upon a charge of murder, and prior to the submission of the appeal for the consideration of this Court, appellant escaped from the custody of the Sheriff of Calhoun County, Mississippi, and is now a fugitive from justice. Crawford v. State (Del.), 94 A.2d 603; Jacobs v. State, 3 Okla. Cr. 648, 108 P. 429; Lofton v. State, 149 Miss. 514, 115 So. 592; People v. Estep, 413 Ill. 437, 109 N.E.2d 762; State v. Handy (Wash.), 67 P. 1094; State v. Keebler (N.C.), 59 S.E. 872; Secs. 1449, 1524, Code 1906; 2 Am. Jur., Appeal Error, Sec. 235 p. 989.
A.T. Patterson, Calhoun City; Stone Stone, Coffeeville; Kermit R. Cofer, Water Valley, for appellant.
I. The motion of State to dismiss the appeal should be overruled. Harding v. State, 96 Miss. 204, 209, 50 So. 694.
Appellant was convicted of murder and sentenced to the penitentiary for life. On a former appeal of the case we reversed the decision of the lower court and remanded the case for a new trial. Harrelson v. State, 217 Miss. 887, 65 So.2d 237. Appellant was again convicted and sentenced to the penitentiary for life, from which he appeals again.
His attorneys have filed a brief and have appeared and argued the case. The Attorney General has also appeared and argued it, but in addition to these proceedings on the merits, the Attorney General has filed a motion to dismiss the appeal because of the fact that the appellant has escaped from the custody of the sheriff of Calhoun County and is still at large. The Attorney General relies on the case of Lofton v. State, 149 Miss. 514, 115 So. 592. We do not think the Lofton case is in point here for the reason that in that case, while the appellant had escaped from custody, he did not prosecute his appeal by attorneys or otherwise. More in point is the case of Harding v. State, 96 Miss. 204, 50 So. 694, under authority of which we will not dismiss the appeal because the conviction is for a felony, nor will we pass on the merits of the case so long as the appellant is at large. (Hn 1) The case will be remanded to the files to be brought up again on proper motion if and when the appellant is again in custody. This action finds support in the following cases: Smith v. U.S., 94 U.S. 97; Bonahan v. Nebraska, 125 U.S. 692; Eisler v. U.S., 338 U.S. 189.
Motion to dismiss appeal overruled and the cause remanded to the files.
Roberds, P.J., and Kyle, Holmes and Gillespie, JJ., concur.