
    HARRIS v. STATE.
    (No. 7749.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.)
    Criminal law <@=ml 131 (5) — Escape without intent to return ousts Court of Criminal Appeals of jurisdiction.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 912, providing that if the defendant, pending an appeal in a felony case, shall escape, the jurisdiction of the Court of Criminal Appeals shall no longer attach, but requiring the court to set aside the order of dismissal if the accused shall have voluntarily returned to custody within 10 days, the court has no discretion except to dismiss where the appellant escaped from custody, used every effort to evade recapture, and attempted to excuse his escape by representing that he was seeking to procure bondsmen pending his appeal.
    Appeal from District Court, Kaufman County; Joel R. Bond, Judge.
    Fred Harris was convicted of murder, and he appeals. On motion to dismiss appeal.
    Motion granted.
    Thos. R. Bond, of Terrell, for appellant.
    H. R. Young, Co. Atty., of Kaufman, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Kaufman county of murder, and his punishment fixed at eight years in the penitentiary.

The state has filed its motion to dismiss this appeal upon the ground of appellant’s .escape from custody after the adjournment of the trial court, and after notice of appeal given, and after the jurisdiction of this court had attached. The affidavits of a number of people are attached to the state’s motion. From them it is made plain that appellant escaped from jail as alleged in the state’s motion to dismiss, and was recaptured the night of the day on which he made his said escape; he being at the time some 16 or 17 miles northeast of the county seat of Kaufman county, going away from the direction of said county seat. When ordered to halt by the officer who arrested him, appellant -fled and was compelled to surrender after having made speedy efforts to get away. These facts are not controverted in appellant’s resistance to the state’s motion to dismiss the appeal, but it is set up by appellant that' his purpose in effecting said escape was to try to get bondsmen to go upon his bond pending appeal to this court. As tending to show the good faith of his claim, appellant alleges without controversy that following his examining trial for the homicide herein charged, he made bond for his appearance before the district court in ease of indictment. The date of the examining trial of appellant does not appear in the affidavits, but it was apparently prior to the convening of the November term of the district court in said county. It is not shown that after indictment appellant made bond or was able to secure bondsmen. It is not shown what bond, if any, was fixed by the trial court after indictment and before appellant’s conviction herein. It does appear that the bond on appeal was fixed at $3,500. The conviction of appellant seems to have been had on December 13, 1922, and the trial term of the court below adjourned on December 29, 1922. From the affidavits supporting the state’s motion it appears that appellant effected his escape.on January 6, 1923. It appears that he was in custody and held without bond from the time of the return of the indictment against him until the time of his trial, and that no offer to make bond on his behalf was made prior to said escape. In ’ the supporting affidavit of appellant he says he left' jail on the 16th of January, 1923, for the purpose of seeing his friends and parties whom he wanted to go on his appeal bond. Appellant is shown to have had a competent attorney and relatives to whom he might look for the making of bond and the securing of sureties.

As we read the articles of our statute governing the disposition of this matter, we have very little, if any, discretion. It is provided in article 912, Vernon’s.O. C. R, that if the defendant, pending an appeal in a felony case, shall make his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case; and, upon the fact of such escape being made to appear, the court shall, on motion of the Attorney General, or attorney representing the state, dismiss the appeal; but the order dismissing the appeal shall be set aside if it shall be made to appear that the accused had voluntarily returned to the custody of the officer from whom he escaped, within Article 913, C. C. P., provides the 10 days. means of making proof of the fact of such escape. These articles have been construed by this court in a number of cases. Brown v. State, 5 Tex. App. 126; Lunsford v. State, 10 Tex. App. 118; Leonard v. State, 53 Tex. Cr. R. 187, 109 S. W. 150; Gibson v. State, 83 Tex. Cr. R. 348, 203 S. W. 892; Maugia v. State, 90 Tex. Cr. R. 539, 236 S. W. 740. The Leonard Case, supra, is the only case that in any way might be taken to support appellant’s contention in this matter. Said case was criticized in the Gibson Case later as being directly in conflict with the plain provisions of the statute. We are inclined ourselves to that view. There is no contention in the instant case that appellant voluntarily returned to the custody of the officer from whom he made his escape, and in fact the proof shows practically without dispute that when re-arrested he was making every effort to evade return to the custody of said officer.. We seriously doubt our right to accept the statement of the appellant that he intended at some time in the future to return to the custody of said sheriff. Not only does this appear to be against the plain declaration of the law, but it establishes a precedent upon which the feelings and opinions of the members of this court as to whether one arrested 10 miles or 50 miles or 300 miles from the place of escape, and who appears to be further trying to get away, could avoid the consequences of his act upon this court’s belief of the fact that at some future time he intended to return to the custody of the officer from whom he had made such escape.

Having concluded that the state’s position in the matter is well taken, its motion to dismiss is granted, and a dismissal of the appeal is ordered. 
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