
    DAVENPORT v. STATE.
    (No. 10346.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1926.)
    Criminal law <§=>1131 (5) — Appeal from murder conviction will be dismissed, where defendant escaped pending appeal and did not subsequently voluntarily surrender (Code Cr. proc. 1925, arts. 824, 825).
    Under Code Cr. Proc. 1925, art. 824, appeal from murder conviction will be dismissed, on showing by affidavit, under article 825, of defendant’s escape from jail pending appeal without subsequent voluntary surrender.
    Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
    Gratton Davenport was convicted of murder, and he appeals.
    Appeal dismissed.
    Wright & Gibbs, of San Angelo, for appellant.
    Collins & Jackson, of San Angelo, Critz & Woodward, of Coleman, Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   HAWKINS, J.

Appellant is under conviction for murder of Sam Rodgers; the punishment being confinement in the penitentiary for 99 years.

The conviction was had in March, 1926. Pending appeal to this court, appellant was confined in the jail of Tom Green county in custody of J. R. Hewitt, the sheriff. This officer makes affidavit that appellant and five other prisoners escaped on the night of August IS, 1926, by sawing out of the jail; that appellant was recaptured some two hours later. The affidavit negatives any voluntary surrender to the officer. Article 824, C. C. P. 1925, reads:

“If the defendant, pending an appeal in a felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape, being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer- from whom he escaped.”

Article 825 provides for affidavit conveying to this court information of escape. Our state’s attorney has filed a motion to dismiss the appeal, based upon the statutes referred to and the affidavit now on file, showing the escape. See, also, Gilbert v. State, 83 Tex. Cr. R. 348, 203 S. W. 892; Gibson v. State, 83 Tex. Cr. R. 435, 203 S. W. 893; Clay v. State, 81 Tex. Cr. R. 637, 197 S. W. 1106; Harris v. State, 94 Tex. Cr. R. 182, 249 S. W. 1053; Mitchell v. State, 99 Cr. R. 32, 265 S. W. 700.

This court having lost jurisdiction by the express terms of article 824, supra, the state’s motion must be sustained, and the appeal is dismissed. 
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