Ex Parte Wood, 19 Tex. Ct. App. 46

Ex Parte Wood

19 Tex. Ct. App. 46 | Tex. App. | 1885

Hurt, Judge.

Wood, the appellant, being indicted for the murder of Ben Warren, was arrested on the 26th day of June, 1885, and, on the same day, sued out a writ of habeas corpus for bail, which was refused and judgment entered remanding him to custody. From this judgment he appealed to this court.

By the proper affidavit of the sheriff of Nolan county, who held appellant in custody, it appears that Wood escaped on the 5th day of July, 1885, pending his appeal to this court. On the 8th day of July, Wood, about thirty miles from the county seat of Nolan county, was arrested and placed in jail, and is now in custody.

Based upon these facts relative to the escape, the assistant attorney-general moves that the appeal be dismissed.

Appellant being charged by indictment with murder, a felony, and the honorable district judge who heard the writ having refused *48bail, the inference is that this is an appeal in a felony case. Being an appeal in a felony case, the provisions of article 845, Code Criminal Procedure, apply. Said article reads: “In case the defendant, pending an appeal in a felony case, shall make his escape from custody, the -jurisdiction of the court of appeals shall no longer attach in the case; and upon the fact of such escape being made to appear, the court shall, on motion of the attorney-general, or attorney representing the State, dismiss the appeal; but the order dismissing the appeal shall be set aside if it shall be made to appear that the accused had voluntarily returned to the custody of the officer from whom he escaped, within ten days.”

It wiU be noted that this article is not confined or limited to appeals in felony cases in which the defendant has been tried and convicted; but is applicable to all appeals in felony cases. The only question, therefore, is, is this an appeal in a felony case? We are of the opinion that it is, and, hence, governed by article 845.

We are of the opinion that the motion should be sustained, and the appeal dismissed; it is therefore ordered accordingly.

Appeal dismissed.

[Opinion delivered October 14, 1885.]