
    [Criminal No. 339.
    Filed February 28, 1914.]
    [138 Pac. 1043.]
    PERFECTO ALDAY, Appellant, v. STATE, Respondent.
    Criminal Law—Appeal—Fugitive prom Justice.—An appeal will be dismissed where the appellant has broken jail and is a fugitive from justice.
    APPEAL from a judgment of the Superior Court of the County of Graham. A. G. McAlister, Judge.
    Perfecto Alday was convicted of murder and he appeals.
    Dismissed.
    Mr. John McGowan, for Appellant.
    Mr. Leslie C. Hardy, Assistant Attorney General, for Respondent.
   FRANKLIN, C. J.

The appellant was convicted of the crime of murder and sentenced to a term of imprisonment in the Arizona state prison. While appellant was serving out his sentence and pending his appeal to this court from the judgment of conviction, the attorney general presents a motion to dismiss the appeal, and in support of his motion files an affidavit of the superintendent of the prison showing that the appellant has absconded and is now a fugitive from justice.

“The rule is well settled that an appellate court will refuse to determine a criminal cause on appeal, where the plaintiff in error (appellant) has broken jail and absconded, and is not within the control of the court, either actually, by being in custody, or constructively, by being out on bail.” Braswell v. State, 6 Okl. Cr. 342, 124 Pac. 631.

In Smith v. United States, 94 U. S. 97, 24 L. Ed. 32, Chief Justice WAITE, said: “If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case.”

The appellant, by absconding, has become a fugitive from justice, and has thereby waived his right to have his case considered and determined on appeal. That an appeal should be dismissed under such circumstances is supported by abundant authority. 12 Cyc. 879; People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; Allen v. Georgia, 166 U. S. 138, 41 L. Ed. 949, 17 Sup. Ct. Rep. 525.

Appeal dismissed.

CUNNINGHAM and ROSS, JJ., concur.  