Opinion
May 7, 1973.
Robert A. Stanziani for the defendant.
John F. Creedon, Assistant District Attorney, for the Commonwealth.
On December 1, 1970, the defendant was found guilty of murder in the second degree and was sentenced to life imprisonment. He appealed, briefs were submitted by the parties, and the matter was argued before this court at its January sitting. Subsequently, on January 30, 1973, the defendant was granted a six day furlough from the institution to which he had been committed. He has never returned from that furlough. On learning that the defendant was a fugitive, the attorney for the Commonwealth filed a motion to dismiss the appeal. At the hearing on the motion, counsel for the defendant agreed that the defendant had been granted a furlough, had not returned at its expiration, and that his whereabouts were unknown. In Commonwealth v. Rezendes, 353 Mass. 228, it was clearly stated that the right of appeal cannot be permitted to a fugitive from justice. In that case the court said, "By his voluntary act, which renders him unavailable to await the decision of the court, he has waived appellate rights. There is no occasion for us to consider his exceptions or any arguments now made on his behalf. This is the necessary consequence of our cases, a result which we fully approve. Commonwealth v. Andrews, 97 Mass. 543. Commonwealth v. Dowdican's Bail, 115 Mass. 133, 137. Henderson v. Henderson, 329 Mass. 257, 258. Ellis v. Doherty, 334 Mass. 466, 468. See Smith v. United States, 94 U.S. 97; Allen v. Georgia, 166 U.S. 138. See also 69 A.L.R.2d 824, 848."
Appeal dismissed.