The offense is burglary; penalty assessed at confinement in the penitentiary for a period of two years.
There has been filed the affidavit of the sheriff of Clay county in accord with article 824, C. C. P., 1925, showing the escape of the accused on the 6th day of April, 1931, and his capture and re-incarceration on the 8th of that month.
The appellant has filed a controverting affidavit admitting the escape but claiming a voluntary return. The facts set up in his affidavit, considered in their strongest light in his favor, do not show a voluntary return. In his flight he was overtaken by the sheriff and arrested. His affidavit is to the effect that he intended to continue his flight until he had visited his family and that after such visit it was his intention to return to jail. This does not, in our judgment, bring him within the terms of the statute mentioned. See cases cited in Vernon's Ann. Tex. C. C. P., 1925, vol. 3, p. 194, note 7; also Reeves v. State, 109 Tex.Crim. Rep..
The appeal is dismissed.
Dismissed.