
    DAVE MYERS v. STATE.
    No. A-2754.
    Opinion Filed April 4, 1917.
    (163 Pac. 958.)
    APPEAL AND ERROR — Escape of Plaintiff in Error — Dismissal. This , court will not 'consider an appeal unless the plaintiff in error is where he can be made to respond to any order or judgment which may be entered in the case, and where the plaintiff in error makes his escape from the custody of the law and becomes a fugitive from justice, the appeal will be dismissed.
    
      Appeal from County Court, Oklahoma County; William H. Zwick, Judge.
    
    Dave Myers was convicted of unlawfully setting up and conducting a gambling game, and he appeals.
    Appeal dismissed.
    
      Walter, Hilpirt & Callihan, for plaintiff in error.
    S. P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
   DOYLE, P. J:

The plaintiff in error was convicted in the county court of Oklahoma county of the offense, of unlawfully setting up and conducting a gambling game, and was sentenced to be confined in the county jail for 30 days and to pay a fine of $100. From the judgment he appealed by filing in this court on' May 11, 1916, a petition in error with case-made.

Counsel for the state have filed a motion to dismiss-the appeal on the ground that said plaintiff in error is a. fugitive from justice and cannot now be found in this-state. In support of the motion is filed an affidavit in part as follows:

“That about the 20th day of November, 1916, the said Dave Myers, together with his wife, departed from Oklahoma county, and, these affiants are informed, from the State of Oklahoma; that his whereabouts since said time have been unknown; that the said Dave Myers had', pending in the county court and district court of Oklahoma county some five cases, which cases were regularly, set for hearing, and were called for trial in said courts-since the date of the departure of said Dave Myers from. Oklahoma; that said Dave Myers in each and all of said causes failed to appear, and forfeitures were taken on his-appearance bonds and alias warrants issued; that the said Dave Myers has not been arrested under said warrants, by reason of the officers being unable to locate him. This affidavit is made in support of an application to be presented by the Attorney General of the State of Oklahoma for the dismissal of said appeal of the said Dave Myers now pending in the Criminal Court of Appeals.”

The affidavit is duly subscribed and sworn to by Roy Cogswell, Mike Conners, and C. M. Baker.

Upon an examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived the right to have his appeal in this case considered and determined.

The appeal is therefore dismissed.

ARMSTRONG and BRETT, JJ., concur.  