[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 204 IN BANC.
This is a proceeding to dismiss an appeal, the motion for dismissal being predicated upon affidavits showing that the defendant is a fugitive from justice.
MOTION OVERRULED. The defendant was twice convicted in the Circuit Court of the State of Oregon for Lane County, for violations of the Prohibition Law, and, in *Page 205 each case, was given a jail sentence and a fine. Both cases were appealed to the Supreme Court, and the defendant, though relieved from actual custody pending each appeal, was in constructive custody by virtue of his undertaking of bail upon appeal. The judgment of the lower court in the first appeal was affirmed in this court and its mandate was remitted to the Circuit Court in October, 1926. Thereupon, the trial court made the necessary order for the execution of its judgment. The defendant not appearing and surrendering himself to the custody of the law, the sheriff undertook to execute the directions of the order and take the defendant into custody, and, as a result thereof, located defendant in the Marion County jail at Salem, Oregon, where he was serving a sentence for a third crime against the Prohibition Law for which he was convicted subsequent to his convictions hereinbefore alluded to. On December 25, 1926, defendant broke jail and fled from the state, and neither the sheriff of Marion nor of Lane County, both of whom instituted a search, was able to take him into custody.
This brings us to the vital question in the case. In this connection, the following definition of the term "fugitive from justice," from a court of high repute, is pertinent:
"A person who commits a crime within a state and withdraws himself from such jurisdiction, without waiting to abide the consequences of such act, must be regarded as a fugitive from the justice of the state whose laws he has infringed." In the Matterof Peter Voorhies, 32 N.J. Law, 141.
See, also, Hughes v. Pflanz, 138 Fed. 980 (71 C.C.A. 234);Ex parte Reggel, 114 U.S. 642 (29 L.Ed. 250,5 Sup. Ct. Rep. 1148). *Page 206
The defendant has been convicted three times, and is an outlaw who has fled from the jurisdiction of this court, and, at this time, is a fugitive from the justice of this state. This fact gives rise to the following question: Can this fugitive from justice, from his concealed lair beyond the confines of this jurisdiction, invoke the power of this court to hear his cause upon appeal in the matter of his second conviction?
Cases are heard on appeal on the theory that, in the event of the appellate court's affirmance of the judgment, the defendant will submit himself to answer the judgment of the court, or, if the judgment be reversed, that the defendant will appear for trial.
The authorities abundantly sustain the proposition that, in the absence of a statute regulating the procedure, it is within the discretion of the court to hear or not to hear the appeal of a prisoner who escapes pending his appeal. See Smith v. UnitedStates, 94 U.S. 97, a leading case on this subject, where the United States Supreme Court, speaking through Mr. Chief Justice WAITE, wrote:
"It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. * * If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case."
The books disclose many rulings of other courts holding to the doctrine that a fugitive from justice who has been convicted of crime shall not be permitted to prosecute an appeal to reverse the judgment of conviction, or be heard for any purpose, *Page 207 unless he resubmits himself to the custody of the law and the jurisdiction of the court: See Warwick v. State, 73 Ala. 486 (49 Am. Rep. 59), overruling Parsons v. State, 22 Ala. 50, often cited in support of the contrary view; People v.Redinger, 55 Cal. 290 (36 Am. Rep. 32); Anonymous, 31 Me. 592; Commonwealth v. Andrews, 97 Mass. 544; People v.Genet, 59 N.Y. 80 (17 Am. Rep. 315); Tyler v. State,3 Okla. Cr. 179 (104 P. 919, 26 L.R.A. (N.S.) 921); Sargent v.State, 96 Ind. 63, 9 Crim. Law Magazine, 439; City ofPortland v. Parchen, 113 Or. 209 (231 P. 980). Moreover, that such escaped prisoner should not be granted the right to have an appeal prosecuted in his name is the doctrine laid down by many writers. The Court of Appeals of Alabama, in the recent case of Lambert v. State (Ala.), 108 So. 631, thus tersely summarizes the whole question:
"A fugitive from justice has no standing in the courts of this state."
The case of Martin v. State (Okla.Cr.App.), 241 P. 832, is squarely in point. In that case, John Martin was tried, convicted and sentenced to serve 180 days in the county jail and to pay a fine of $500, for the unlawful possession of intoxicating liquor. He appealed. We assume that the appellant had given bail after his conviction, as provided by 1 Compiled Oklahoma Statutes, Sections 2811, 2922. The proof in support of the motion to dismiss showed that, at the time the motion was submitted, another criminal charge was pending against him in the courts of that state; that, when called for trial in the other case he had failed to appear and could not be found, and that he had last been seen in another jurisdiction. On the question of dismissal, the court held: *Page 208
"Whenever a defendant in a case appealed to this court voluntarily places himself beyond its jurisdiction, so that the orders of this court cannot be enforced, the appeal will be dismissed."
Again, in treating of the rights of a prisoner who has escaped after appealing his case, a pre-eminent authority succinctly states:
"No steps in his behalf should ordinarily be permitted until he returns and submits to the law; because the ends of justice mayrequire him to be held to answer to some other proceeding shouldthis one be reversed." 1 Bishop's New Criminal Procedure, § 269, par. 3.
To the same effect, see 3 Wharton's Criminal Procedure (10 ed.), § 1708. In addition, this famous author of criminal law says:
"A writ of error will not be heard when the party suing it out has escaped from the jurisdiction of the court." 3 Wharton's Criminal Procedure (10 ed.), § 1708.
See, also, the wealth of authorities cited in the notes.
As adhering to the same doctrine, see 7 Encyclopedia of Pleading and Practice, p. 925, where the editors dispose of the subject in the following language:
"The general, if not universal, rule is for the court to refuse to consider such appeal, unless at the instance of the state."
The mere fact that the defendant has given a bail bond and is represented by counsel does not relieve him from the consequences of his escape and concealment. It is not necessary for an appealing defendant, whether convicted of a misdemeanor or a *Page 209 felony, to appear in person in the appellate court. In either case he may appear by attorney. However, to set a precedent which enables a felon who has means or friends who will become his bail to take himself without the jurisdiction of the court by flight or concealment and await the determination of his case on appeal would, in the opinion of the writer, be poor law enforcement. If such policy is adopted by this court, it points the way to this class of criminals to go unwhipped of justice, because, to announce a doctrine that the criminal may flee to parts unknown after giving a bail bond, and there await the action of the appellate court on his appeal, would be virtually to put it within the power of the man of means to avoid the penalties fixed by law.
By taking bail in this case, the state accepted constructive, in lieu of actual, custody of the defendant, and consented to the exercise of control over him by his bondsmen: United States v.Marrin, 170 Fed. 476.
Now, what is the relation of the defendant and his bail? In the case of Taylor v. Taintor, 83 U.S. (16 Wall.) 366 (21 L.Ed. 287), Mr. Justice SWAYNE, delivering the opinion of the court, said:
"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. * * `The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge.' * * They may doubtless permit him to go beyond the limits of the state within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee." *Page 210
See, also, State v. Crosby, 114 Ala. 11 (22 So. 110);Brown v. People, 26 Ill. 28; State v. Sandy,138 Iowa, 580 (116 N.W. 599); United States v. Lee, 170 Fed. 613.
We have made an intensive study of this subject. From such study, we are unqualifiedly committed to the doctrine announced by the highest authorities and the most eminent criminal law-writers of America, that, when it satisfactorily appears to the appellate court that a convicted criminal has fled from the jurisdiction of the court, it is within the power of that court to refuse to hear his appeal. But, while we have the power, in our discretion, to dismiss the appeal where the appellant is a fugitive from justice, this case having also been heard on the merits and therein affirmed, it is unnecessary to exercise our discretion by dismissing the appeal, and the motion is therefore overruled. MOTION OVERRULED.
BURNETT, C.J., did not participate in this opinion.