
    S. J. Whatley alias Baldy Whatley v. The State.
    No. 20459.
    Delivered October 25, 1939.
    
      The opinion states the case.
    
      Taylor, Irwin & Irwin, Ivan Irwin, and W. B. Moore, all of Dallas, for appellant.
    
      Andrew Patton, Criminal District Attorney, Gene Bailey, and Ellis P. House, Jr., all of Dallas, and Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   GRAVES, Judge.

Appellant was convicted of an assault with intent to murder Mrs. Cumie Barrow, and assessed a penalty of twelve years in the penitentiary. Upon appeal, his case was affirmed by this court on June 21, 1939, and a motion for a rehearing therein is now pending.

It is now made known to this court that while in the custody of W. W. Waid, Warden of the State penitentiary, the said Whatley escaped from such institution and custody on September 29, 1939, and has not voluntarily surrendered, and is now on this date at large.

Art. 824, C. C. P. provides that if the defendant, pending appeal, escapes from custody, the jurisdiction of this court no longer attaches, but that upon his voluntary return within ten days, such appeal shall be reinstated. It appears herein, however, that the ten days allowed for a voluntary return have elapsed, and he is still at large.

Therefore the original opinion herein of date June 21, 1939, is hereby withdrawn, and this appeal is dismissed.  