KIRK MORGAN
v.
STATE.

Appeal from District Court, Carter County; W. F. Freeman, Judge.

Kirk Morgan was convicted of burglary, and appeals. Appeal dismissed.

J. B. Champion and Brown & Williams, for plaintiff in error.

The Attorney General, R. McMillan, Asst. Atty. Gen., and A. J Hardy, Co. Atty., for the State.

Page 692

PER CURIAM.

The plaintiff in error, Kirk Morgan, was convicted in the district court of Carter county on an information charging that on or about the 20th day of August, 1917, he committed the crime of burglary by unlawfully, feloniously, and burglariously breaking and entering in the nighttime a certain building within the curtilage of the dwelling house of G. E. Lamb, at 1616 B street, in the city of Ardmore. His punishment was fixed at imprisonment in the penitentiary for the term of two years. From the judgment rendered on the verdict an appeal was perfected by filing in this court on March 20, 1918, a petition in error with case-made.

On May 7, 1918, counsel for the state filed a motion to dismiss his appeal on the ground that since the appeal was taken he left the state and was convicted on the 19th of April, 1918, of grand larceny in the superior court of Los Angeles county, Cal., and was sentenced to imprisonment in the state prison of the State of California at San Quentin for the term prescribed by law. The showing made is the same as that in the case of Morgan v. State, ante, p. 466, 172 P. 974, this day decided.

In the response filed the material averments of the motion to dismiss are not denied. It follows that plaintiff in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed. Mandate forthwith.