A. B. Gresham v. The State, 1 Tex. Ct. App. 458

Ector, Presiding Judge. The assistant attorney general, ■as counsel for the state, during the present term of this court, suggested that, since the appeal in this cause was perfected, the appellant had escaped and is now at large. Wherefore said counsel for the appellee moved the court to •dismiss said appeal. And this court dismissed said appeal upon the fact of such escape having been made to appear, in accordance with the provisions of the act of the legislature of this state, approved August 21, 1876. See Gen. Laws, Fifteenth Legislature, 217.

On the 17th day of October the attorneys for the appellant filed a motion to set aside the order dismissing the appeal, and to reinstate the case on the docket in this ■court; in which motion they set forth that the said act of the legislature, in pursuance of which this case was dismissed, is prospective, and not retrospective; that it is an -ex post facto law, and unconstitutional.

As the defendant has attempted to relieve himself by flight, and to put himself out of the reach of the law, this •court might reasonably conclude that he had abandoned his appeal, that he was in contempt of court, and that his appeal should be dismissed. The supreme court of Kentucky has decided that an ■escaped prisoner, who had been convicted of a felony, will not be permitted to prosecute an appeal to reverse the judgment of conviction, and, consequently, dismissed his appeal.

Gofer, J., delivering the opinion, uses the following language, to wit: “ It seems to us clear, both upon principle and authority, that the motion ought to be sustained. The court ought-not to do a nugatory act; yet, if we proceed to try this-appeal, the appellant cannot be compelled to submit to our decision if it should be against him, and ought not, therefore, to be allowed to reap the benefit of a decision in his favor.

He might thus be enabled to defeat the ends of justice entirely, for he may be able to keep beyond the reach of' the officers until, by death or removal of witnesses, or other causes, his conviction upon a second trial would be rendered improbable, if not impossible. As he has chosen to undertake to relieve himself by flight, in contempt of the author- ■ ity of the court and of the law, he cannot also invoke the aid of this court.” 10 Bush. (Ky.) 526.

The appellant having voluntarily placed himself out of' the reach of the law, and having manifested a disposition not to submit himself to its decision should it be against him, he is not entitled to be heard in this court, or in any-manner to invoke its aid. When the appellant surrenders himself to legal custody, so that the decision of his case, if against him, can be-enforced, then this court, if it thinks that it committed an error in dismissing his appeal, can revise its action.

The motion filed by the counsel for the appellant, to set. aside the said order dismissing the appeal, and to reinstate-; the above entitled cause on the docket of this court, is overruled. Motion overruled.