Appellant was convicted of murder; and condemned to suffer death.
There is on file an affidavit of the Sheriff of Jefferson County to the effect that on the 9th day of October 1922, the appellant escaped from jail and from the custody of the sheriff.
The State bases a motion upon this affidavit to dismiss the appeal. It is made imperative by statute that the escape of one charged with felony pending his appeal, the cause must be dismissed upon motion of the Attorney General supplementing the affidavit of the sheriff, such as is found on file in the instant case. Arts. 912 and 913, Code of Crim. Proc.
It is also provided that the order of dismissal shall be set aside if it be made to appear that the accused has voluntarily returned to the custody of the officer from whom he escaped within ten days. The escape being proved in the manner provided by law and it not having been made to appear that appellant has voluntarily returned to custody, this court is without jurisdiction to entertain the appeal.
It is therefore ordered dismissed.
Dismissed. *Page 449