(Syllabus.)

Appeal and Error — Where Appellant Fugitive from Justice, Appeal Dismissed. Where it is shown that the appellant is a fugitive from justice and cannot be made to answer any judgment upon the merits of his appeal, which may be rendered by this court, the appeal will be summarily dismissed.

Appeal from District Court, Bryan County; Porter Newman, Judge.

Henry Farve was convicted of rape, and he appeals. Appeal dismissed.

Phillips & Phillips, for plaintiff in error.

Edwin Dabney, Atty Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

DOYLE, P.J. This conviction was for rape in the first degree, alleged to have been committed in Bryan county on September 6, 1925. The jury assessed the punishment at imprisonment in the penitentiary for the term of fifteen years. From the judgment and sentence of the court pronounced on December 5, 1925, an appeal was perfected by filing in this court on March 20, 1926, a petition in error with case-made.

Since the final submission of the case on briefs, the Attorney General has filed a motion to dismiss the appeal on the ground and for the reason that the appellant is now and has been for the last five months a fugitive from justice, having broken jail at Ardmore about five months ago, as appears from the letter of Wallace W. Gates, assistant county attorney of Bryan county, addressed to the clerk of this court.

The uniform holding of this court is that, where a defendant has been convicted and perfects an appeal

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from the judgment, this court will not consider the 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 a defendant makes his escape from the custody of the law and becomes a fugitive from justice pending the determination of his appeal, the same will be dismissed. It follows from what has been said that the motion to dismiss is well founded.

The appeal herein is accordingly dismissed.

EDWARDS and DAVENPORT, JJ., concur.