Summary
In Beco v. Tonopah Extension Mining Co., 37 Nev. 199, 141 P. 453, followed in Portland Cattle Loan Co. v. Wheeler Stoddard, 50 Nev. 205, 255 P. 999, it was held that an ex parte order, extending the time within which the mover for a new trial shall serve on the adverse party a memorandum of exceptions and errors, though properly granted, is without effect until notice thereof has been given the adverse party, as required by district court rule 36.
Summary of this case from O'Neill v. VasiliouOpinion
No. A-2174.
Opinion Filed June 30, 1914.
(Syllabus by the Court.)
APPEAL — Dismissal. 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 in the case. And where a defendant makes his escape from the custody of the law, and becomes a fugitive from justice, the appeal will be dismissed.
Appeal from District Court, Kiowa County; James R. Tolbert, Judge.
John Williams was convicted of cattle stealing, and appeals. Appeal dismissed.
Rummons Logan, for plaintiff in error.
C.J. Davenport, Asst. Atty. Gen., for the State.
The plaintiff in error, John Williams, was convicted in the district court of Kiowa county on an information wherein he was charged with the larceny of five cows, the property of D.H. Van Kirk. Said larceny is alleged to have been committed on the 2d day of May, 1913. The trial was had at the May, 1913, term of said court. The jury returned a verdict of guilty. On the 26th day of July, 1913, the court pronounced judgment and sentenced plaintiff in error to be imprisoned in the penitentiary for a period of three years. To reverse the judgment, an appeal was taken by filing in this court on January, of this year, a petition in error with case-made. On April 2d a motion to dismiss the appeal was filed in this court, on the ground that plaintiff in error was a fugitive from justice, and notice of the same was served on his counsel of record. No response has been filed.
On the facts as averred in the motion, and by affidavit in support thereof, we think the motion to dismiss the appeal should be sustained as coming within the following rule declared by this court in numerous decisions:
"The Criminal Court of Appeals will not consider an appeal, unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case; and, where the defendant makes his escape from the custody of the law, and is at large as a fugitive from justice, this court will on motion dismiss the appeal." (Tyler c. State, 3 Okla. Cr. 179, 104 P. 919, 26 L.R.A. [N.S.] 921; Belcher v. State, 9 Okla. Cr. 50, 130 P. 515.)
It is our opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal is therefore dismissed.
ARMSTRONG, P.J., and FURMAN, J., concur.