The opinion
MORROW, Presiding Judge.
The appellant was tried in the District Court of Grimes County for the offense of murder, and upon the verdict of the jury he was convicted and his penalty assessed at death.
The judgment was entered on the 27th of June, 1934. The
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case was brought to this court on appeal on September 28, 1934. The appeal has not been reached for consideration by this court, but there are before us affidavits filed October 1, 1934, stating that Joe Palmer escaped from custody on the 22nd day of July, 1934, and that he was recaptured in the State of Kentucky on the 12th day of August, 1934, which was twenty-two days after the date of the escape. The affidavits filed invoke the decision of this court as to whether the appeal shall be dismissed or considered.
The statute upon the subject is Chapter 34, Acts of 43rd Legislature, Regular Session, page 64, amending article 824, C. C. P. The language of the statute is as follows: “If the defendant, pending an appeal in a felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped;
and in cases where the punishment inflicted by the jury is death or confinement in the penitentiary for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape.”
It appearing that the appellant’s recapture was effected more than ten and less than thirty days after his escape, it is the duty of this court to decline to sustain the motion to dismiss the appeal. It is so ordered.
Affirmed.