
    TOM HAYES v. STATE.
    No. A-7921.
    Opinion Filed March 14, 1931.
    (296 Pac. 988.)
    
      John W. Tillman and Fred A. Tillman, for plaintiff in error.
    J. Berry King-, Atty. Gen., for the State.
   EDWARDS, J.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Osage county of manslaughter in the first degree, and was «sentenced to- serve- a term of 10 years in the state penitentiary.

A motion to dismiss the appeal has been filed, setting out that subsequent to the judgment in this case defendant pleaded guilty in the United States District Court for the Northern District of Oklahoma on a charge of transporting whisky, and was sentenced by that court to serve a term of three years in the federal penitentiary at Leavenworth, Kan., and that he is now incarcerated in said penitentiary. The motion is supported by affidavits and copies of the federal records.

It has been many times held by this court that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered in the case.

It being undisputed that defendant is confined in a federal penitentiary beyond the jurisdiction of this court and where he could not be made to respond to any judgment or order, the appeal is dismissed.

DAVENPORT, P. J., and CHAPPELL, J., concur.  