
    KIRK MORGAN v. STATE.
    No. A-3278.
    Opinion Filed May 18, 1918.
    (172 Pac. 974.)
    APPEAL AND ERROR — Defendant’s Absence from State — Dismissal. Where a defendant has been convicted and appeals from the judgment and sentence, this court will not consider his appeal unless defendant is where he can be made to respond to any judgment or order which may be rendered or entered in the case, and, where he leaves the state and is convicted of crime in another state pending the determination of his appeal, this court will on proper motion dismiss the appeal.
    
      Appeal from District Court, Carter County; W. F. Freeman, Judge.
    
    Kirk Morgan was convicted of burglary, and he appeals.
    Appeal dismissed.
    
      J. B. Champion and Brown & Williams, for plaintiff.' in error.
    
      
      S. P. Freeling, Atty. Gen., R. McMillan, Asst. Atty. Gen., and A. J. Hardy, Go. Atty., for the State.
   DOYLE, P. J.

Plaintiff in error, Kirk Morgan, was eonvicted in the district court of Carter county on an information charging that on or about the 8th day of May, 1916, he committed the crime of burglary by unlawfully, feloniously, and burglariously breaking and entering a building at number 23 North Washington street, city of Ardmore. His punishment was fixed at imprisonment in the penitentiary, for the term of two years. From the judgment rendered on the verdict an appeal was perfected by filing in this court on March 4, 1918, a petition in error with case-made. On May 7, 1918, counsel for the state filed a motion to dismiss his appeal in part as follows.

“As ground for said dismissal, the Attorney General says that pending said appeal the said Kirk Morgan has left the jurisdiction of the courts of Oklahoma; that he was on the 26th of February, 1918, confined in the county jail at Los Angeles, Cal., for the theft of automobiles; this charge is made in pursuance of the affidavit of S. H. Harris,' who saw him and talked to him while in said California jail, which affidavit and the affidavit of A. J. Hardy, the county attorney of Carter county, Okla., are hereto attached and made a part of this motion. Also a copy of the judgment showing that said Kirk Morgan was sentenced to serve a term of from one to ten years in San Quentin Prison, in the superior court of Los Angeles, for the theft of an automobile.”

In the response filed the material averments of the motion are not denied.

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 this court will not consider an appeal unless the plaintiff in error is where he can be made to respond to any judgment or order which may be rendered or entered in the case. 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.

■ARMSTRONG and MATSON, JJ., concur.  