
    GILBERT v. STATE.
    (No. 4846.)
    (Court of Criminal Appeals of Texas.
    May 1, 1918.
    Rehearing Denied May 29, 1918.)
    1. Criminal Law i&wkey;1131(7) — Appeal—Escape — Dismissal.
    Where appeal was dismissed under Vernon’s Ann. Code Cr. Proc. 1916, arts. 912, 913, on account of the escape of appellant, recapture within ten days of his escape, while preventing a voluntary return, did not restore jurisdiction of the appeal.
    2. Ceiminal Law &wkey;>1131(7) — Appeals — Motions — Matters Reviewable.
    Ón motion to reinstate appeal dismissed on account of escape of appellant, the only matters before the court are the matters involved in the escape, and the court cannot consider an issue in the trial court as to insanity.
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Frank Gilbert was convicted of crime, and he appealed. Appeal was dismissed on account of the eseaxie of appellant. Motion to reinstate appeal. Overruled.
    The appeal was dismissed without written opinion.
    E. B„ Pickett, Jr., of Liberty, for appellant. E. B. Hendricks, Asst. Atty. Gen., for tlie State.
   On Motion to Reinstate Appeal.

DAVIDSON, P. J.

On a former day of tbe term this appeal was dismissed on account of the escape of appellant. This was made to appear satisfactory to the court at the time. Motion is made to reinstate the appeal. The facts show, both in the motion to reinstate and the original showing, that defendant had 'escaped; that he broke jail near midnight, and was captured, by tlie sheriff the next day some time, about 12 miles from the jail from which he escaped. There is nothing to indicate in the motion that it was his purpose to return, or that he was returning. The sheriff captured him. Under all the authorities, which are found collated in Vernon’s Crim. Stats, pp. 875, 876, this was an escape, and not 'evidence of a voluntary return. The general proposition is laid down and supported by all the authorities that where a defendant, pending his appeal, escapes from the custody of the sheriff, and not voluntarily returning within ten days, the appeal will be dismissed, and where he has been recaptured before the lapse of ten days his escape, nevertheless, divests the court of the jurisdiction of the appeal. A recapture within ten days, while preventing a voluntary return of the defendant into custody, will not restore jurisdiction of the appeal. Lunsford v. State, 10 Tex. App. 118; Ex parte Wood, 19 Tex. App. 46; Loyd v. State, 19 Tex. App. 137. These decisions follow the statute, which is article 912, C. C. P. 1911.

It is claimed in the motion that there was an issue on the trial of defendant’s insanity., This was decided against him by tbe jury, but tbis would not entitle him to have bis appeal reinstated any more than any other adverse question in the case. Any issue in the case properly presented on the record would be reviewed by the court in passing upon the transcript on its submission, but this court is not authorized to enter into an examination of the issues presented in the transcript on appeal while there is pending before it a motion to reinstate the appeal, which had been dismissed on a previous day of the term on account of the voluntary escape of defendant. This court would not he authorized to resolve itself into a trial court to review any question presented on the record on appeal from the conviction. The only matter to be reviewed by the court upon motion to dismiss tlie appeal on account of escape would be tbe matters involved in the escape. The question is whether he voluntarily escaped, and not what the merits were on the trial of his case before the jury.

The motion to reinstate the appeal will therefore be overruled. 
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