Opinion
No. A-1968.
Opinion Filed May 2, 1914.
Appeal from District Court, Marshall County; A.H. Ferguson, Judge.
Dot Gorrell was convicted of the larceny of a domestic animal, and appeals. Appeal dismissed.
Wm. M. Franklin and Geo. S. March, for plaintiff in error.
Chas. West, Atty. Gen., and C.J. Davenport, Asst. Atty. Gen., for the State.
Plaintiff in error, Dot Gorrell, was convicted in the district court of Marshall county on an information which charged the larceny of a horse. The judgment and sentence of the court, rendered and entered on the 23d day of November, 1912, was that he be imprisoned in the penitentiary for a term of one year and one day. From this judgment an appeal was taken by filing in this court on April 10, 1913, a petition in error with case-made. A motion to dismiss the appeal has been filed, which, omitting the formal parts, reads as follows: "Comes now the state of Oklahoma by the Attorney General and gives the court to understand that the plaintiff in error, Dot Gorrell, soon after his conviction and sentence in the district court of Marshall county, from which this appeal originated, made and executed a bond for appeal; that after the execution of said bond the plaintiff in error voluntarily left the state of Oklahoma and went to the state of Texas, and while there the plaintiff in error was tried and convicted of larceny, in the district court of Grayson county, Texas; that the sentence in said case in the district court of Grayson county, Texas, was that plaintiff in error be imprisoned in the state penitentiary for a period of one year; that thereafter said Dot Gorrell took steps to appeal from said judgment to the Court of Criminal Appeals of the state of Texas, and thereafter abandoned said appeal; and as the Attorney General is informed and believes, the said plaintiff in error is now serving said sentence of said court of Grayson county, Texas; that there are pending against plaintiff in error in the district court of Marshall county, state of Oklahoma, five informations charging plaintiff in error with larceny; that the appearance bond in one of said cases has been forfeited by the district court of Marshall county; all of which said facts appear from an affidavit of C.A. Coakley, county attorney of Marshall county, state of Oklahoma, marked Exhibit "A" hereto attached and made a part hereof; that by reason of said facts, plaintiff in error is a fugitive from justice; that he has voluntarily placed himself beyond the rights of this court or the lower court, and has forfeited his right to have the same considered, and that this appeal ought to be dismissed. Wherefore, the Attorney General prays that an order be made dismissing this appeal and directing that the original judgment of conviction and sentence of imprisonment be executed, and the Attorney General further moves that this motion be set down for immediate action by this court." No answer or response to the aforesaid motion has been filed on behalf of plaintiff in error. The question presented by the motion to dismiss is the same as that decided in Belcher v. State, 9 Okla. Cr. 50, 130 P. 515, and Peel v. State, 9 Okla. Cr. 234, 131 P. 548. In those cases it was held 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 rendered in the case, and where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice, this court will on motion dismiss his appeal. It is our opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined. The motion to dismiss is sustained; the appeal is dismissed and the cause remanded to the district court of Marshall county.