Harding v. State

50 So. 694 | Miss. | 1909

Mates, J.,

delivered the opinion of the court.

At the September term of the circuit court of Monroe county, 1908, Charles Harding was convicted of obtaining money under false pretenses and given a three-year sentence in the penitentiary. After the conviction an appeal was prosecuted therefrom to the supreme court, and the record filed here on the 2d day of February, 1909. Subsequently, on motion of the assistant attorney-general, it was made to appear to the court that while this appeal was pending the appellant had made his. escape from custody, and on motion of the assistant attorney-general the case was taken from the active calendar of the court and passed to- the files to await the rearrest of appellant. Motion was made to this effect in February, 1909, and the order taken on the 11th of February, same year. On October 13, 1909, a second motion was made by the assistant attorney-general, asking this court to reinstate the case on the active calendar, and dismiss same, because of the fact that the appellant had escaped, and therefore, under the contention of the attorney-general, abandoned his appeal.

We may say. in the outset, that almost the unanimous authority of the various courts of the Union, as shown by the adjudicated cases where this question has arisen, is in support of the position taken by the assistant attorney-general, and if we were to follow authority from other states we would be bound -to sustain the motion. Many of the adjudicated cases, however, find their predicate in statutes requiring the court to dismiss in cases like this; but we think that this whole matter is merely a rule of practice, which, in the absence of a statute on the subject, each court may adopt for its own government. We therefore decline to adopt the rule followed by any other state, but adhere to our own practice, which has prevailed uniformly heretofore, and refuse to either act upon or dismiss an appeal, where it is shown that appellant has escaped, in all cases where it is an appeal from a conviction of a felony. If an appeal be prosecuted for any offense less than felony, pursuing the policy outlined in Code 1906, § 1495, which permits the trial of a party on a misdemeanor charge in his absence, we will dismiss any case less than felony, where it is made to appear that the party has abandoned his appeal or escaped from custody pending the appeal. We think this is a safer and more just rule of practice, and shall adhere to it until the legislature sees fit to change it. A very instructive case on this subject is to be found in 94 N. C. 945, in the case of State v. McMillan. We are aware of the fact that the court rendering this opinion af-terwards decided the question the other way, but it was not until after the legislature had passed an act requiring it so to do.

Let the case remain on file. Motion overruled.

Overruled