Hammons v. State , 35 Tex. Crim. 17 ( 1895 )

HURT, Presiding Judge.

The Attorney General has filed a motion to dismiss the appeal in this case, on the ground that the appellant escaped from the custody of the sheriff of Travis County pending his appeal. This escape occurred Sunday evening at about 7 o’clock p. m. He surrendered himself to the sheriff of Burnet County at 11:45 p. m. on the following Wednesday week. The motion to dismiss the appeal was resisted by the ap]j>ellant on the ground that he had surrendered within the time prescribed by the statute, which is ten days after his escape. We hold that the day upon which the escape occurred is not to be reckoned, and in this case, if appellant had surrendered himself to the officer from whom he escaped, he would have been in time to have preserved his appeal. But the law requires the convict to voluntarily return to the custody of the officer from whom he escapes. He did not do this, but surrendered himself to the sheriff of Burnet County. The sheriff of Bur-net County was not the officer from whom he escaped, nor had said sheriff any legal right to retain him. He was without authority in law to do so. If appellant had surrendered himself to the sheriff of Travis County, or any of his deputies, or the successor of such sheriff, at the time he surrendered to the sheriff of Burnet County, he would have been in time; but a surrender to any sheriff in the State, except the sheriff of the county from which he escaped, his deputies, or successor, is not a compliance with the statute. Unless the appellant becomes the prisoner of the proper officer before the expiration of the ten days, in law he abandons his appeal. By the conduct of the accused, if we should hold to a contrary rule, it might entail upon the State the trouble and expense of transporting him to the county from which he made his escape. The motion is accordingly granted, and the appeal is dismissed.

Dismissed.