
    DE SILVA v. STATE.
    (No. 7125.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1922.)
    Criminal law 131 (5) — Appeal dismissed, appellant having escaped from jail.
    Where appellant was convicted of murder, and the sheriff filed an affidavit that he had escaped from jail, and it did not appear that appellant had returned to custody, under Code Cr. Proc. 1911, arts. 912, 913, on motion of the Attorney General, the appeal will be dismissed.
    Appeal from District Court, Jefferson County; E. A. McDowell, Judge.
    Newt De Silva was convicted of' murder, and he appeals. On motion to dismiss.
    Appeal dismissed.
    Frank Vaughn, of Beaumont, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was convicted of murder, and condemned to suffer death.

There, is on file an affidavit of the sheriff of Jefferson county, to the effect that on the-9th day of October, 1922, the appellant escaped from jail and from the custody of the sheriff.

The state bases a motion upon this affidavit to dismiss the appeal. It is made imperative by statute that, on the escape of one charged with, felony pending his appeal, the cause must be dismissed upon motion of the Attorney General, supplementing the affidavit of the sheriff, such as is found on file in the instant case. Articles 912, 913, Code Crim. Proe.

It is also provided that the order of dismissal shall be set aside if it be made to appear that the accused has voluntarily returned to the custody of the officer from whom he escaped within 10 days. The escape being proved in the manner provided by law, and it not having been made to appear that appellant has voluntarily returned to custody, this court is without jurisdiction to entertain the appeal. It is therefore ordered dismissed. 
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