The plaintiff in error was convicted in the district court of Canadian county on an information charging the theft of two mules, the property of one S.M. Mabry. The judgment and sentence of the court, rendered January 2, 1915, was that he be imprisoned in the penitentiary for the term of five years. To reverse the judgment an appeal was perfected by filing in this court, on April 26, 1915, a petition in error with case-made. A motion to dismiss the appeal has been filed, which, omitting the formal parts, is as follows:
"In this case comes S.P. Freeling, Attorney General, and R. McMillan, Assistant Attorney General, and moves the court to dismiss the appeal herein, for the reason that the plaintiff in error, the said Ed Justus, is not a citizen of the State of Oklahoma, and is out of the jurisdiction of this court, and is at this time an inmate of the penitentiary of the State of Kansas, to which he has been sent recently on a charge of horse stealing and under a sentence of seven years' confinement. As an evidence of these statements concerning the whereabouts of the said Ed. Justus, we file herewith as Exhibit A, making it a part of this motion as much as though the same had been copied in the same, a letter from R.H. Hudspeth, record clerk of the Kansas penitentiary, and ask the the court to consider the same. With these facts, which we verily believe to be true, we ask the court to dismiss this appeal."
The question presented by the motion to dismiss is the same as that decided in Belcher v. State, 9 Okla. Cr. 50,130 P. 515; Peel v. State, 9 Okla. Cr. 234, 131 P. 548; Gorrell v.State, 10 Okla. Cr. 697, 143 P. 341, and Williams v. State,11 Okla. Cr. 33, 141 P. 453. In those cases it was held that where a defendant has been *Page 57 convicted and sentenced and perfected an appeal, this court will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case, and where the defendant makes his escape from the custody of the law, and becomes a fugitive from justice, this court will, on motion, dismiss his appeal.
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.
DOYLE, P.J., and BRETT, J., concur.