DISMISSAL — Fugitive from Justice. 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.

(Syllabus by the Court.)

Appeal from County Court, Kingfisher County; R.F. Shutler, Judge.

Ed Alexander was convicted of a violation of the prohibitory law and appeals. Appeal dismissed.

Bradley & Bradley, for plaintiff in error.

R. McMillan, Asst. Atty. Gen., for the State.

DOYLE, P.J. The plaintiff in error, Ed Alexander was convicted in the County Court of Kingfisher county on an information charging that on or about the second day of March, 1915, in said county and state, he did sell one quart of whisky to one H.W. Willis, for the sum of two dollars. On the 5th day of May, 1915, judgment was rendered and he was sentenced to be confined in the county jail for thirty days and to pay a fine of fifty dollars and the costs. From the judgment an appeal was taken by filing in this court on the 26th day of July, of this year, a petition in error with case-made.

The attorney general has filed a motion to dismiss the appeal on the ground that plaintiff in error is a fugitive from justice. Which motion is supported by the affidavits of W.B. Blair, county attorney and W.M. Rutherford, sheriff of Kingfisher county.

Page 201

On the facts as averred in the motion, and by affidavits 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:

"Where a defendant has been convicted and sentenced, and perfected 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 the defendant makes his escape from the custody of the law, and becomes a fugitive from justice the appeal will be dismissed."

Williams v. State, 11 Okla. Cr. 35, 141 P. 453.

It appearing that the plaintiff in error has escaped from the custody of the sheriff of Kingfisher county, and is at large as a fugitive from justice, the appeal herein is dismissed.

FURMAN and ARMSTRONG, JJ., concur.