Tyler v. State

The question presented for decision, by the motion of the Attorney General on behalf of the state, in this case, is a new one in this court, although the like question has often been considered and decided by other courts of last resort. It will be observed that it is shown by the affidavit of the sheriff of Blaine county, upon which the motion to dismiss is founded, that the plaintiff in error, P.F. Tyler, escaped from his custody on the 6th day of August, 1909, and is at large as an escaped convict. His appeal to this court was perfected on July 17, 1909. There has been no appearance on behalf of the plaintiff in error to resist the motion. However it may be argued that under the provisions of the act of criminal procedure, the defendant is entitled to have his appeal considered. Section 5606, Wilson's Rev. Ann. St. 1903, provides:

"An appeal to the Criminal Court of Appeals may be taken by the defendant, as a matter of right from any judgment against him; and upon the appeal, any decision of the court, or intermediate order made in the progress of the case may be reviewed."

Doubtless this is the law; and, if the defendant in this case had remained in the custody of the law, his appeal would have been considered upon the assignments of error, and the judgment against him reviewed by this court, but he cannot unlawfully escape from the custody of the law, and, while he is at large as an escaped convict and fugitive from justice, claim the right to have his appeal considered and determined, and thus obtain a review by this court of the judgment and rulings of which he complains.

From a review of the authorities we are convinced that it is no part of our duty as an appellate court to consider or review the judgment, orders, and rulings of which he complains, while he is at large as an escaped convict. Such has been the uniform holding of the courts of last resort in other jurisdictions, and it meets our full approval. In the language of Chief Justice Waite, in Smith v. United States, 94 U.S. 97, 24 L. Ed. 32, we may say of the case at bar:

"If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not as he may consider most for his interest. Under such circumstances we are not inclined to hear and decide what may prove to be only a moot case."

While it is the constitutional right of the accused, in a criminal prosecution "to be heard by himself and counsel," it must be held, we think, that he has no right to appear by counsel alone after he has escaped from lawful custody and is at large.

"A provision of the Constitution that the defendant has a right to be heard in person or by counsel does not entitle the defendant to appear by counsel when he has escaped." (Com. v.Andrews, 97 Mass. 543; People v. Genet, 59 N.Y. 80, 17 Am. Rep. 315.)

In Maine the court declined to hear argument until the defendant was brought into custody. This is probably the earliest case in the United States. Anonymous, 31 Me. 592.

"Where an appeal is taken to a higher court, and the defendant is not required to personally appear before the appellate court, the fact of the escape is usually brought to the court's notice by affidavit filed by the prosecution."

See People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; Shermanv. Com., 14 Grat. (Va.) 677.

In McGowan v. People, 104 Ill. 100, 44 Am. Rep. 87, Chief Justice Scott said:

"The plaintiffs in error are in no position to invoke the judgment of this court in respect to the errors alleged to have been committed on their trial and conviction in the court below. They do not stand ready to abide that judgment when pronounced, but since suing out the writ they have broken jail, and fled from the custody of the officer, and are standing in defiance of the law and its officers. It is a matter within the discretion of the court whether we will hear the writ under these circumstances. The better practice clearly is that the cause shall not proceed to a hearing when the persons to be affected are not within the jurisdiction of the court to answer to its judgment, but are in the attitude of fugitives from justice. While it is not essential to the validity or binding force of any judgment which may be rendered by this court upon exceptions presented by one who has been convicted upon a criminal charge that he should be present in court, either at the hearing of the cause or upon the rendering of the judgment, yet it would be idle for the court to proceed to determine the questions presented when the possibility of enforcing whatever judgment it might pronounce must depend upon the option of the fugitive to return into custody, or upon the remote chances of their ultimate recapture by the officers of the law. Before the powers of the court can appropriately be called into action in a criminal procedure like this, the person to be affected by the judgment ought to be within the control of the court below, either actually by being in custody, or constructively by being on bail. The reason of the rule is obvious. Should a hearing of the cause result in an affirmance of the judgment below, the escaped prisoners would not be likely to return voluntarily to meet the execution of the sentence. Should a reversal result, they might return and submit to another trial, or not, as the grounds of the decision might suggest to them the prudence of one or the other course of action. We do not think it would subserve the ends of justice to permit persons charged with crime to speculate in this manner upon their chances of escape or conviction. Persons appealing to this court for redress should stand in an attitude to accept and abide the result, whatever that may be. The authorities upon the question are in harmony with the reason of the rule. * * *"

The appellant, by escaping from jail, where he was being held pending a determination of his appeal to this court, has voluntarily withdrawn himself from the jurisdiction of the court. So far as he has any right to be heard under the Constitution, and the statute before this court, he must be deemed to have waived it by escaping from the custody of the law. Where a person convicted of a felony has escaped from the custody of the law, no order or judgment, if any should be made, can be enforced against him, and appellate courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of an escaped convict. While we find no express provision of our statute authorizing a dismissal of an appeal in a criminal case for the reasons stated in the present motion, we are of opinion that the appellant by his own act has waived the right to have his case considered and determined. In this conclusion we are sustained by the authorities quoted, and many others.

For the reasons given, the motion of the Attorney General to dismiss the appeal is sustained, and the cause remanded to the district court of Blaine county, with directions to cause the judgment and sentence to be carried into execution.

FURMAN, PRESIDING JUDGE, and OWEN, JUDGE, concur.