Kuykendall v State

Kuykendall v State
1946 OK CR 40
168 P.2d 142
82 Okl.Cr. 228
Decided: 04/10/1946
Oklahoma Court of Criminal Appeals

(Syllabus.)

1. Appeal and Error-Appeal not Considered Where Appellant Has Left Jurisdiction of Court. Where defendant has been convicted and sentenced and perfects an appeal, Criminal Court of Appeals will not consider his appeal unless the defendant is where he can be made to respond to any judgment or order it may render and enter in the case.

2. Same-Violation of Conditions of Appeal Bond by Leaving State. Where convicted defendant appeals and gives bond to stay the execution of the sentence during the pendency of the appeal, and violates condition of the bond by leaving the state without leave of court, it is within the discretion of the Criminal Court of Appeals to proceed to a decision of the cause or dismiss the appeal.

3. Same Dismissal of Appeal Where Appellant Left State and Was Convicted of Crime in Another State. Where defendant, after conviction of crime of forgery and during pendency of his appeal to this court, left the state without permission and was indicted for similar offenses allegedly committed by him in three different counties in another state, and where proof in support of motion to dismiss appeal shows that at present time defendant is incarcerated in jail in other state and unable to respond to any judgment which Criminal Court of Appeals may render, his appeal will be dismissed.

Appeal from District Court, Stephens County; Cham Jones, Judge.

J. W. Kuykendall was convicted of forgery in the second degree, and he appeals, and the Attorney General moves to dismiss the appeal. Appeal dismissed.

Jerome Sullivan, of Duncan, for plaintiff in error.

Randell S. Cobb, Atty. Gen., and Jess L. Pullen, Asst. Atty. Gen., for defendant in error.

Page 229

JONES, P. J. The defendant, J. W. Kuykendall, was convicted in the district court of Stephens county of the crime of forgery in the second degree, and was sentenced to serve a term of one year in the State Penitentiary.

From the judgment rendered on April 5, 1945, an appeal was perfected by filing in this court on October 4, 1945, a petition in error with case-made attached.

The Attorney General has filed a motion to dismiss the appeal for the reason that after the judgment and sentence was pronounced against the defendant, he left the State of Oklahoma and went to the State of Texas, where he committed a series of offenses similar to the ,one for which he was convicted in the district court of Stephens county. That he has been indicted by a grand jury of Hale county, Tex., a grand jury of Dawson county, Tex., and a grand jury of Lynn county, Tex., for the crime of forgery, allegedly committed in October, November, and December, of 1945, in each of said counties, respectively. That the defendant is now lodged in jail in Dawson county, Texas, and is beyond the jurisdiction of this court.. That he left the State of Oklahoma and went beyond the jurisdiction of this court without the leave of the court and because of his absence from the state, he will be unable to respond to any order or judgment that the Criminal Court of Appeals may issue in regard to his appeal.

A hearing was held before this court on February 13, 1946, at which time, certified copies of indictments which had been filed against the defendant in the State of Texas, for acts committed subsequent to his appeal filed herein, were received in evidence in support of the motion to dismiss the appeal. There was, also,

Page 230

introduced in evidence in support of the motion to dismiss the appeal a telegram dated February 12, 1946, received by the county attorney of Stephens county, from the clerk of the district court of La Mesa, Tex., in which it is stated that J. W. Kuykendall at that time was incarcerated in the Dawson county jail.

Counsel for the defendant, who was present at the hearing on the motion to dismiss, admitted that his client was in the State of Texas, but stated that he was not there voluntarily, but was taken out of the State of Oklahoma by extradition process from the Governor of Texas, which was honored by the Governor of Oklahoma, and that he will voluntarily respond to the judgment of the Criminal Court of Appeals in the event that his appeal is decided against him.

In Kilpatrick v. State, 71 Okla. Cr. 125, 109 P.2d 514, it is held:

"Where a defendant leaves this state without proper permission during the pendency of an appeal to this court, he is in the attitude of a fugitive from justice, and thereby waives the right to have his conviction reviewed. It then becomes a matter within the discretion of this court whether, under the facts and circumstances, the appeal will be considered and determined.

"Held, where the defendant, after conviction of the crime of rape and during the pendency of his appeal to this court, left the state without permission and was indicted for a similar offense in another jurisdiction, his appeal should be dismissed."

In Kilpatrick v. State, supra, this court stated in the body of the opinion:

"In Bryce v. State, supra, (14 Okla. Cr. 456, 172 P. [976], 977), this court said: 'Persons convicted of crime in courts of record within this state have a right

Page 231

to appeal to this court, but such appeals must be taken in the manner and under the conditions provided by law. The right to supersede a judgment of conviction by the giving of an appeal bond cannot be considered by appellants as a license to roam at large pending such appeal Evinger v. State, 35 Okla. Cr. 12, 247 P. 416.