(Syllabus.)

Appeal and Error — Appeal Not Considered Where Appellant Is Fugitive From Justice. Where a defendant has been convicted 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.

Appeal from County Court, Greer County; Jarrett Todd, Judge.

Burl Lofton was convicted of transporting intoxicating liquor, and he appeals. Appeal dismissed.

C.C. Wells, for plaintiff in error.

W.M. Williams, Co. Atty., for the State.

CHAPPELL, J. The plaintiff in error, hereinafter called defendant, was charged jointly with Ed Penn and J.C. Story with the crime of transporting intoxicating liquor. At the time of the trial the defendant, J.C. Story was a fugitive from justice and his bond was ordered forfeited. The defendants, Burl Lofton and Ed Penn, were tried and found guilty by a jury and sentenced by the court to each pay a fine of $100 and all costs of the action taxed at $131.40, and each be confined in the county jail for a period of 60 days.

This case was tried in November, 1926, and the appeal of the defendant, Burl Lofton, was lodged in this court on the 28th day of March, 1927. The Attorney General has filed a motion to dismiss the appeal on the ground that the defendant is a fugitive from justice. This motion was filed on the 9th day of November, 1927, and is supported by an affidavit made by the county attorney and sheriff of Greer county that the defendant is a fugitive from justice,

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and the motion also bears the affidavit of Mary A. Foley that she served a copy of the motion to dismiss upon C.C. Wells, attorney at law, Mangum, Okla., the attorney of record for the defendant in this case, by United States mail.

No response to said motion has been made. It is settled by many decisions of this court that, where a defendant has been convicted and appeals from the judgment, this court will not consider his appeal unless he is where he can be made to respond to any judgment or order of the court, but in such cases will dismiss the appeal.

The appeal is dismissed.

EDWARDS, P.J., and DAVENPORT, J., concur.