This case was affirmed in an opinion delivered November 19, 1924. A motion for rehearing was filed on December 2, 1924. The State files a motion to dismiss the appeal on the ground of the escape of the appellant on the night of December 4, 1924, which fact is proven and supported by the affidavit of the sheriff of Comanche county. There is no claim that appellant has voluntarily returned to custody. The only contention made now is that the law giving to the State the right to dismiss an appeal in case of the escape of the accused, is unconstitutional. Appellant contends that to dismiss the appeal deprives him of his constitutional right to have a final determination of his trial by a jury; his proposition, as we understand it, being that until the case is disposed of by a final judgment of this court on appeal, that there has been no final judgment entered. Wt have examined the authorities cited and considered the positions advanced by able counsel for the appellant, *Page 286 but are unable to bring ourselves in agreement with his conclusions. There is no possible question of the right of one who has been convicted of a crime, and whose case is pending on appeal, at any time to withdraw that appeal. It is also true that aside from the right created and given by statute so to do, one has no constitutional right of appeal at all. The statute giving the right to appeal also has the right to prescribe the ways, manner, methods anr means by which such appeal may be taken, and in the absence of the observance of these rules this court will dismiss. The statute created the right to appeal, and may be manifestly prescribe how that right may be forfeited or lost. We are not at all able to agree with appellant.
We find no precedent for our disposition of the matter at this time. The judgment has been affirmed. Appellant, by his motion for rehearing, is seeking to set aside that judgment. Art. 912 of our C. C. P., provides 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. It occurs to us, reasoning by analogy and from principle, that our only jurisdiction in the matter at this stage is to dismiss the appeal as though no judgment had ever been entered. The only thing we can do is to enter an order evidencing a relinquishment of further jurisdiction.
The motion to dismiss the appeal will be granted.
Motion to dismiss granted.