Chance v. State

DOYLE, P. J.

Plaintiff in error, Charley Chance, was convicted in the county court of Ottawa county on an information jointly charging plaintiff in error and Bill Chance with the unlawful possession of intoxicating liquor, alleged to have been committed on or about October 24, 1925. The jury by their verdict found both defendants guilty, and fixed his punishment at a fine of $150 and confinement in the county jail for 60 days. From the judgmént rendered in accordance with the verdict, plaintiff in error, Charley Chance, appealed by filing in this court February 15, 1926, petition in error with case-made. On February 8, 1927, the cause was submitted on the record.

The Attorney General has filed a motion to dismiss the appeal on the ground and for the reason that said plaintiff in error has, since the filing of his appeal, removed from the state of Oklahoma without leave of court, and is now a resident of the state of Kansas, and cannot be compelled to submit to any judgment this court may render in said cause, as shown by the affidavit of A. L. Commons, attached.

The uniform holding of this court is that, where a defendant has been convicted and sentenced and perfects an appeal, this court will not consider the appeal unless the defendant is where he can be made to respond to any judgment or order which may be rendered in the case.

On the facts as averred in the motion, and by affidavit in support thereof, it is our opinion that plaintiff in *34 error has waived his right to have his appeal in this case considered and determined.

It follows that the motion to dismiss the appeal should be sustained. It is therefore the order of the court that the motion be sustained and the appeal accordingly dismissed.

EDWARDS and DAVENPORT, JJ., concur.