Opinion Filed February 17, 1917.
Appeal from District Court, Haskell County; W.H. Brown, Judge.
C.H. Victor was convicted of rape, and he appeals. Appeal dismissed.
A.L. Becket, for plaintiff in error.
S.P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.
Plaintiff in error was tried and convicted in the district court of Haskell county, on an information charging statutory rape. The judgment and sentence of the court, rendered on the 9th day of December, 1915, was that he be imprisoned in the penitentiary at McAlester for the term of seven years. From the judgment an appeal was taken by filing in this court on March 10, 1916, a petition in error with case-made. Counsel for the state have filed a motion to dismiss the appeal on the ground that said plaintiff in error is out of the jurisdiction of this court, and is at this time an inmate of the federal penitentiary at Leavenworth, Kan., having been committed there upon a judgment and sentence rendered on a conviction for the crime of forgery. The question presented by the motion to dismiss the appeal is the same as that decided in Belcher v. State, 9 Okla. Cr. 50, 130 P. 515, and in numerous other cases, the last being Justus v. State, ante, p. 54, 161 P. 1177, wherein it was held that where a defendant has been convicted and sentenced, and perfects an appeal, this court will not consider his appeal when the defendant is where he cannot be made to respond to any judgment or order which may be rendered in the case. Upon a careful examination of the motion and the proof supporting the same, we are of opinion that plaintiff in error has waived the right to have his appeal in this court considered and determined. The appeal is therefore dismissed.