Swan v. State

Plaintiff in error, Denny Swan, was convicted in the county court of Stephens county on a charge that he did have in his possession intoxicating liquor, to wit, about 7 gallons of whisky, with the unlawful intent to barter, sell, give away, and otherwise furnish the same to other persons, and, in accordance with the verdict of the jury, he was sentenced to be confined in the county jail for 90 days, and to pay a fine of $250. From the judgment he appealed by filing in this court on February 27, 1922, a petition in error with case-made.

The Attorney General has filed a motion to dismiss the appeal, on the ground that, since the appeal was taken, plaintiff in error has become a fugitive from justice, being charged with a felony, to wit, forgery, and is not now, and has not for some time prior hereto, been within the jurisdiction of this court.

In support of the motion are filed the affidavits of P.D. Sullivan, county attorney, and E.H. Rhyne, sheriff of Stephens county, and J.B. McLendon, cashier of the National Bank of Duncan. These affidavits show that, on the 2d day of June, 1922, there was filed a preliminary complaint in the county court of Stephens county, Okla., charging the said Denny Swan with the crime of forgery in the second degree, and a warrant was by the said court on the said date issued for the arrest of said Denny Swan for the said offense; the said warrant has not been served; that said sheriff deposes:

"I have made diligent effort to serve the same; I have searched for said Denny Swan personally, and had my deputies to look for him; I have wired peace officers in the cities of El Paso, Tex., El Dorado, Ark., Kansas City, Mo., and Little Rock, Ark., and many other places, endeavoring to have said Denny Swan apprehended and returned to Stephens county, and the said Denny Swan is now a fugitive from justice."

We are of the opinion that the motion to dismiss the appeal should be sustained as coming within the rule declared by this court in numerous decisions, that where the defendant has been convicted and sentenced and perfects an appeal, this court will not consider his 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, this court will, on proper motion, dismiss his appeal. It follows that plaintiff in error has waived the right to have his appeal in this case considered and determined. The appeal is therefore dismissed. Mandate forthwith.

MATSON and BESSEY, JJ., concur.