Opinion
APPEAL from a judgment of the Superior Court of Merced County and from an order denying a new trial. J. K. Law, Judge.
COUNSEL:
James F. Peck, Frank H. Farrar, and B. F. Fowler, for Appellant.
W. F. Fitzgerald, Attorney-General, and C. N. Post, Deputy Attorney-General, for Respondent.
JUDGES: In Bank. Garoutte, J. Harrison, J., Van Fleet, J., McFarland, J., Henshaw, J., and Temple, J., concurred.
OPINION
GAROUTTE, Judge
The defendant, Elkins, was convicted of murder of the second degree, and has appealed from the judgment of conviction, and also from the order denying his motion for a new trial. This appeal is now pending before one of the departments of this court.
The attorney general, by motion asks the court to dismiss the appeal upon the ground that the defendant has escaped from custody and is now at large. He supports his application by an affidavit of the sheriff in whose custody the defendant was held to that effect. The interesting question as to the power of the appellate court under the facts here presented, and the proper procedure to be followed in such a case, has been carefully considered upon an identical state of facts arising in the case of People v. Redinger , 55 Cal. 290; 36 Am. Rep. 32. Upon the authority of that case it is ordered that the appeal in this case stand dismissed unless the defendant shall, within thirty days from this date, return to the custody of the sheriff of the county of Merced, state of California. It is further ordered that a copy of the within order be served upon the attorneys of defendant within five days hereof.