
    MITCHELL v. STATE.
    (No. 9045.)
    (Court of Criminal Appeals of Texas.
    Oct. 29, 1924.)
    Criminal law @=»l 131 (5) — Court of Criminal Appeals held bound to grant motion to dismiss appeal in view of sheriff’s affidavit charging accused’s escape pending appeal.
    Where, in support of state’s motion to dismiss appeal, it appeared from uncontroverted affidavit of sheriff that accused, convicted of murder, escaped pending his appeal, and did not voluntarily return to custody within 10 days, Court of Criminal Appeals was bound to grant motion in view of Code Cr. Proe. 1911, arts. 912, 913.
    Appeal from District Court, Lamar County ; Ben H. Denton, Judge.
    Roy Mitchell was convicted of murder, and he appeals.
    Appeal dismissed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at death.

The verdict wa’s rendered at the May, 1924, term of the district court of Lamar county. The motion for new trial was overruled and notice of appeal entered on the 17th day of May, 1924. The statement of facts and bills of exception were filed in the trial court, partly on May 23 and partly on July 18, 1924.

By the affidavit of J. E. Brown, sheriff of Lamar county, dated the 11th day of October, 1924, it is made to appear that the appellant made his escape from the county jail of Lamar county, where he was confined pending the result of the appeal of his case; the escape taking place on the 31st day of July, 1924.

It is asserted in the affidavit that the appellant made a key which he used in unlocking the doors of the jail; that he made his escape during the night by descending from the fourth story of the jail, using a rope made of blankets; that after fleeing the country he was arrested in the city of Pine Bluff, Ark., upon another crime charged against him. The sheriff learned of the appellant’s whereabouts on the tenth day after his escape, and he was delivered to him by the officers of the state of Arkansas who had him in custody. It is also stated in the affidavit that the appellant did not voluntarily return or surrender.

Based upon this affidavit, there is a motion to dismiss tile appeal made by the state’s attorney. We find nothing in the record controverting the truth of the affidavit, and are constrained, in obedience to the statute, to grant the motion. The escape of the appellant and his failure to voluntarily return to custody within ten days deprives this court of the authority to consider the appeal upon the merits. Article 912, C. C. P. The affidavit of the sheriff is declared by statute to be sufficient evidence upon which to authorize this court to dismiss,the appeal. See article 913, C. C. P.; Maugia v. State, 90 Tex. Cr. R. 539, 236 S. W. 740, and cases there cited; also, Pendergrass v. State, 92 Tex. Cr. R. 467, 244 S. W. 513.

The'appeal is ordered dismissed. 
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