Rogers v Tulsa

Rogers v Tulsa
1948 OK CR 65
196 P.2d 532
87 Okl.Cr. 221
Decided: 06/28/1948
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Dismissal-Appellant Violating Bond by Leaving State. Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of this bond by going to another state and there committing a felony resulting in his commitment to. the penitentiary where he cannot respond to any judgment this court might render, it is within the discretion of the court whether it will proceed to a decision of the cause or dismiss the appeal.

2. Same Dismissal of Appeal. Where appeal is perfected from judgment of conviction and state later files motion to dismiss appeal on the ground that defendant had been convicted of a felony and incarcerated in the penitentiary in another state and out of the jurisdiction of the court, and at the hearing on said motion no response is filed and no appearance is made on behalf of defendant, Criminal Court of Appeals will consider the appeal as abandoned and will sustain the motion for dismissal where the proof sustains the allegations of the motion.

Appeal from Municipal Criminal Court, City of Tulsa; W. P. Nelson, Judge.

Robert Lowell Rogers was convicted of reckless driving, and he appeals. Appeal dismissed.

James P. Devine, of Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and Geo. B. Schwabe, Jr., City Prosecutor, of Tulsa, for defendant in error.

BRETT, J. Defendant, Robert Lowell Rogers, was charged in the municipal criminal court of the city of Tulsa, Tulsa county, Okla., with the crime of reckless driving in violation of Ord. No. T-150, Ordinances of the City of Tulsa, was tried, convicted and sentenced to serve 30 days in jail, and pay a fine of $100 and costs.

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An appeal from that judgment was filed on April 7, 1947. On April 7, 1948, the city prosecutor of the city of Tulsa filed a motion in this court to dismiss the appeal in which he alleges that the defendant, Robert Lowell Rogers, is now, and since March, 1947, has been outside of the jurisdiction of this court, that the defendant is presently incarcerated in the Illinois State Penitentiary, Joliet, Ill., serving a sentence of from five to ten years for the crime of burglary, that the defendant cannot be made to respond to any judgment or order that might be made in this case, and that for said reason the appeal should be dismissed. Thereafter, the said case was set for hearing on April 28, 1948, at 1:30 p. m. No response to said motion has been filed on behalf of the defendant, and no appearance in his behalf was made at the time the motion to dismiss came on for hearing. Proof of the state substantiates the allegations of the motion to dismiss the appeal. In Evinger v. State, 35 Okla. Cr. 12, 247 P. 416, it is stated:

"Where a convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates the conditions of his bond by leaving the state without leave of court, it is within the discretion of the court whether it will proceed to a decision of the cause or dismiss the appeal.

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

In Bryce v. State, 14 Okla. Cr. 456, 172 P. 976, 977, Judge Matson, speaking for the court, says:

"If persons who are convicted of crime within this state leave the jurisdiction of this court after taking an appeal without its permission or order, even for a short

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