Appellant prosecutes this appeal from a conviction of murder. The conviction occurred on the 24th of August, 1898. A motion for a new trial was filed on the 25th. An amended motion for new trial was filed on the 29th of August, and on that day the defendant escaped from custody, and was recaptured on the 4th of September following, and returned to custody. On the 7th of September the motion for new trial was overruled, sentence pronounced, and notice of appeal given. On account of the escape, the Assistant Attorney-General moves a dismissal of the appeal. Article 880, Code of Criminal Procedure, provides that, pending an appeal to this court in this character of case, the escape of the defendant ousts this court of jurisdiction to hear and determine said appeal. But it only applies when the jurisdiction of this court has attached after the notice of appeal has been legally given. The conviction in this case was imprisonment in the penitentiary. Therefore it was necessary that sentence should be pronounced and notice of appeal given before the jurisdiction of this court would attach. By recurring to the facts, we discover that appellant's motion for new trial had not been acted upon, nor was sentence pronounced; nor was notice of appeal given at the time of his escape, nor for some days after his recapture. There was nothing therefore entered in the record which attached the jurisdiction of this court, and the appeal therefore was not pending in this court. The motion to dismiss said appeal is not well taken, and it is therefore overruled.
Motion to dismiss overruled.
HURT, Presiding Judge, absent.