Syllabus by the Court.
Where a
defendant has been convicted and sentenced to serve a term in
state prison, and perfects an appeal to this court, it is
essential that he should be in custody pending his appeal, by
being confined in the county jail or state prison, as may be
provided by law, or constructively in custody by being
admitted to bail; otherwise he waives his right of having his
conviction reviewed by this court.
The
Criminal Court of Appeals will not consider an 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 is at large as a fugitive from justice, this court
will on motion dismiss the appeal.
Appeal
from District Court, Blaine County; Frank M. Bailey, Judge.
P. F
Tyler was convicted of forgery and appealed. Motion by the
State to dismiss the appeal, for the reason that appellant
had escaped from the custody of the law and was a fugitive
from justice. Appeal dismissed, and cause remanded, with
directions.
See
also, 102 P. 716.
An
appeal by accused will be dismissed, where he has made his
escape and is a fugitive from justice.
Plaintiff
in error, P. F. Tyler, was indicted in the district court of
Blaine county, tried by a jury, and found guilty of the crime
of forgery. Motions for a new trial and in arrest of judgment
having been made, and overruled, and exceptions allowed, the
court adjudged according to the verdict, on the 22d day of
April, 1909, that he, P. F. Tyler, be sentenced to the state
prison to be confined at hard labor for a term of three
years; term to begin at the time said defendant is delivered
to the warden of the state prison. On the same day he prayed
an appeal to the Criminal Court of Appeals, which was
granted, and 60 clays were given him in which to prepare and
serve a case-made. On June 19th the time was extended 30 days
from the 21st day of June. On July 17, 1909, there was filed
with the clerk of this court a petition in error and
case-made, together with proof of service of notices of
appeal, upon H. N. Boardman, county attorney for Blaine
county, and E. J. Warner, clerk of the district court of said
county.
On the
5th day of November, 1909, there was filed in this case the
motion of the Attorney General, on behalf of the state, to
dismiss the appeal, which motion is as follows: "Comes
now the above-entitled defendant in error, the state of
Oklahoma, by its Attorney General, Charles West, and the
Assistant Attorney General, Charles L. Moore, and moves the
above-entitled court to grant an order dismissing the
plaintiff in error's appeal filed herein, and in support
hereof alleges and states: (1) That the plaintiff in error
herein has heretofore, until the 6th day of August, A. D
1909, been confined and imprisoned in the county jail of
Blaine county, state of Oklahoma, and was so confined and
imprisoned therein under and by virtue of an order of the
district court of Blaine county, Okl., and also under and by
virtue of an order of the above-entitled Criminal Court of
Appeals of the state of Oklahoma, pending his appeal herein,
and while in default of bail. That on the 6th day of August,
A. D. 1909, while the said P. F. Tyler was then and there so
imprisoned and confined in said jail, under and by virtue of
the above-described orders, the said P. F. Tyler did then and
there unlawfully and wrongfully, and without authority of
law, make his escape from the said jail, and did thereafter
flee from the said county of Blaine and from the state of
Oklahoma, and that the said plaintiff in error, P. F. Tyler,
is at this time a fugitive from justice and his present
whereabouts unknown. That by reason thereof the said
plaintiff in error, P. F. Tyler, has abandoned his appeal in
the above-entitled' cause of action, and has wrongfully
and unlawfully fled from the jurisdiction of the
above-entitled court, and is not longer entitled to have his
appeal considered and determined in the above-entitled court,
and all of which actions upon the part of the said plaintiff
in error, P. F. Tyler, have been voluntary and wrongful and
unlawful and contrary to law and the orders of the court. In
support hereof are attached the affidavits of George A.
McArthur, P. W. Southwick, and W. B. Skeen, and by this
reference made at part hereof. Wherefore, the defendant in
error respectfully prays the court to grant and issue an
order dismissing the plaintiff in error's appeal herein,
and remanding this case to the trial court, with instructions
to carry into effect the original judgment and sentence of
the court herein."
This
motion is founded on the affidavit of George A. McArthur
sheriff of Blaine county, which affidavit is as follows:
"I, George A. McArthur, of lawful age, after being first
duly sworn, do depose and say: That I am the duly elected,
qualified, and acting sheriff of Blaine county, state of
Oklahoma, and that I have been such sheriff since on or about
the -- day of --, A. D. --. I further certify and state that
I have been personally acquainted with the above-named
plaintiff in error, P. F. Tyler, for -- years last past. That
the said P. F. Tyler was convicted of the offense of forgery
in the second degree upon the trial of the case to review
which his appeal to the above-entitled court has been taken.
That in the trial of the said case in the district court of
Blaine county, Okl., which said case was and there entitled,
'Case No. --, The State of Oklahoma, Plaintiff, v. P. F.
Tyler, Defendant,' the said defendant, P. F. Tyler, was
sentenced by the trial court to three years'
imprisonment, at hard labor, in the State Penitentiary at
McAlester, Okl., as shown by the records and proceedings in
said case. That on the -- day of --, A. D. --, the said P. F.
Tyler was remanded by the Criminal Court of Appeals to my
care and custody as sheriff of Blaine county, Okl. and was
thereafter detained and imprisoned in the common jail of
Blaine county, Okl., in the town of Watonga therein, under
and by virtue of said order and commitment. That thereafter,
to wit, on the 6th day of August, A. D. 1909, while the said
P. F. Tyler was so confined and imprisoned in said common
jail of Blaine county, Okl., and in my care and custody, as
the sheriff of said county, he, the said P. F. Tyler, did
then and there, without my knowledge or consent and against
my will, escape from said common jail of Blaine...
