State v. WrightState v. Wright
- Reporters:
- Before:
- Levy
The opinion of the Court was delivered by
Levy, J.In this case the defendant, Ben Wright, was tried and convicted, in thе District Court of Bienville parish, of the crime of larcеny, and by judgment of said court sentenced to two years imрrisonment at hard labor in the penitentiary, and has taken an appeal to this Court. The District Attorney, reprеsenting the State, has filed a motion for the continuanсe of the case, and supports it with an affidavit, in which hе declares that the prisoner‘has escapеd from the custody of the law, and is now a fugitive from justice, аs affiant, said District Attorney, has been creditably informed. We are unable to find any precedent, in the repоrted cases of the Supreme Court of this State, in which а similar motion has been made or acted upon.
While the affidavit is vague and uncertain, we reasonably infеr from the record that this escape has taken place since the conviction, sentence аnd judgment were had. We shall take cognizance of the suggestion made in his motion and affidavit by the law officer, prosecuting in the name and by the authority of -the State. Whilе a prisoner, who has escaped the custody оf the law pending his appeal, cannot by counsеl prosecute his appeal, we are not prepared to say that upon a mere sug-*1018gestión of suсh escape or reported escape we would be justified in dismissing his appeal; still we are of opinion, that unless in the hands or custody of the law we cannоt try the case. We find in the Southern Law Review for October-November, 1880, a digest of a case recently deсided in the ’Supreme Court of California, entitled : “ The People vs. Redinger,” in which this identical point is decided. From this digest it appears that “ defendant was convicted оf murder in the first degree and was sentenced to be hanged. An appeal was taken, pending which defendant escaped from custody. On motion of the Attorney General to dismiss the appeal, it was held that, although defеndant could not prosecute his appeal by counsel, having waived that right by breaking jail, yet the motion to dismiss was denied, -but ordered that the appeal stand dismissed unless defendant return to custody before May 1,1881. A convicted murderer has no right to appear by counsel in an appeal from the judgment of the lower court, where it appears that he has escaped from сustody; and his appeal will be dismissed unless he return to custody.”
Disposed to recognize the correctness оf this dicision and action of’ the court in the case cited, we adopt the course therein presentеd, and it is, therefore, ordered that this case be cоntinued until the next term of this Court, which will begin at Shreveport, on the second Monday of October, 1881, and if in the meantime the prisoner, Ben Wright, does not return to the proper custody of the law, the appeal herein will be dismissed.