
    Harrelson v. State.
    No. 39410
    December 20, 1954
    76 So. 2d 516
    
      Wm. E. Gresswell, Asst. Atty. Gen., Jackson, for appellee.
    
      A. T. Patterson, Calhoun City; Stone & Stone, Coffee-ville; Kermit R. Gofer, Water Valley, for appellant.
   Hall, J.

Appellant was convicted of murder and sentenced to the penitentiary for life. On a former appeal of the case we reversed the decision of the lower court and remanded the case for a new trial. Harrelson v. State, 217 Miss. 887, 65 So. 2d 237. Appellant was again convicted and sentenced to the penitentiary for life, from which he appeals again.

His attorneys have filed a brief and have appeared and argued the case. The Attorney General has also appeared and argued it, but in addition to these proceedings on the merits, the Attorney General has filed a motion to dismiss the appeal because of the fact that the appellant has escaped from the custody of the sheriff of Calhoun County and is still at large. The Attorney General relies on the case of Lofton v. State, 149 Miss. 514, 115 So. 592. We do not think the Lofton case is in point here for the reason that in that case, while the appellant had escaped from custody, he did not prosecute his appeal by attorneys or otherwise. More in point is the case of Harding v. State, 96 Miss. 204, 50 So. 694, under authority of which we will not dismiss the appeal because the conviction is for a felony, nor will we pass on the merits of the case so long as the appellant is at large. The case will be remanded to the files to be brought up again on proper motion if and when the appellant is again in custody. This action finds support in the following cases: Smith v. U. S., 94 U. S. 97; Bonahan v. Nebraska, 125 U. S. 692; Eisler v. U. S., 338 U. S. 189.

Motion to dismiss appeal overruled and the cause remanded to the files.

Robercls, P. J., and Kyle, Holmes and Gillespie, JJ., concur.  