tution of that which was never in existence. But this case presents a very different question. No excuse whatever is given why counsel for appellant did not substitute the lost instructions. It was clearly within their power by substitution of the lost instruc tions to obviate the difficulty which confronted them. If the fact that the instructions given by the court to the jury are lost constitutes a ground for granting a new trial, where no effort has been made to substitute such instructions, a most dangerous precedent would be established. It would place great temptation in the way of the friends of a defendant to destroy the instructions, and would involve all parties who were interested in securing a new trial under grave suspicion, where such instructions were lost. The power to substitute lost papers of any character offers ample relief in an emergency of this kind. That a new trial should not be granted upon the ground that the instructions were lost has been previously decided in this state.

In the case of Devore v. Territory of

(a) A judge pro tempore may fix the time within which a case-made may be prepared and served; but after he has fixed such time he cansuch case-made. not extend the time for preparing and serving

(b) If a judge pro tempore has tried a case, and has fixed the time within which a case-made to secure an extension of time to prepare and may be prepared and served, and it is desired serve such case-made, such extension of time may be granted by the regular judge of the district in which the case was tried, or it may in said court; but, if granted by the judge prebe granted by any judge who may be presiding siding in said court, the record must show that court was actually in session at the time that

the extension was granted by the court.

(c) If the time fixed has expired within which a case-made may be prepared and served, no judge has power to extend such time.

ed parts will have the same force and effect as though they had been originally incorporated in the record or case-made when first filed in this court.

Oklahoma, 2 Okl. 562, 37 Pac. 1092, the court said: "The plaintiff in error complains that he has been deprived of his right of review of Oklahoma 1909, where a transcript of the (d) Under section 6077, Snyder's Comp. Laws of the instructions of the court by the fact record or case-made has been filed in this court that they are not to be found in the office of in due time, and by proper motion it is made the clerk of the court below, and that he is to appear that any matter is of record in the therefore entitled to a reversal and a trial the cause appealed or any evidence heard on the court from which the appeal is taken, touching de novo. The court instructed the jury, and trial of said cause, or that any statement or cerupon the evidence under the instructions the tificate, or motion or other matter, is omitted jury found the defendant guilty. The pre- ciently stated therein, this court will allow the from such record or case-made, or are insuffisumptions of law are, in the absence of er- appellant a reasonable time within which to preror, which must be made to appear by the pare such omitted parts of the transcript of the plaintiff in error, that the proceedings of the record or case-made under the direction of the district court are regular, and that the in-court, and when so filed such corrections or addtrial judge, and file such corrections in this structions to the jury gave the law correctly. But it is the privilege of the defendant to bring the case here by appeal, and if it is made to appear to this court that error has been committed, the case will be reversed, if the error is material. The defendant is therefore interested in the preservation of the record. If it is not made to appear that error has been committed, the judgment of the district court will stand. If, after judgment against a defendant in a criminal case, exceptions reserved and appealed to this court, the defendant should be relieved and the judgment reversed, because the instructions given below were lost from the case, great difficulty might be experienced in preserving the instructions until the case could be brought here."

Counsel for appellant in their brief did not complain of any errors in the record, except the loss of the instructions.

For the reasons above given, we cannot grant appellant a new trial upon this ground. The judgment of the lower court is therefore affirmed.

ARMSTRONG and DOYLE, JJ., concur.

(e) Our statute provides for two methods of prosecuting an appeal, viz., upon the transcript of the record, accompanied by a case-made, or first method is pursued, and for any reason the upon a transcript of the record alone. If the case-made is fatally defective, the appeal will be considered upon the transcript of the record not properly certified to by the clerk of the alone. But if the transcript of the record is court, the appeal will be dismissed.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2780, 2877, 2897, 29032905; Dec. Dig. §§ 1087, 1099, 1109, 1110.*]

Appeal from District Court, Roger Mills County; James R. Tolbert, Judge.

James W. Dobbs was convicted of manslaughter in the first degree, and he appeals. Dismissed.

R. B. Forrest and John B. Harrison, for appellant. Smith C. Matson, Asst. Atty. Gen., Charles M. Thacker, and Claude Weaver, for the State.

FURMAN, P. J. Appellant was found guilty of the crime of manslaughter in the

first degree in the district court of Roger | said cause, the defendant prayed an appeal Mills county, Okl., and his punishment was assessed at imprisonment in the penitentiary for a period of 15 years.

Hon. G. A. Brown, the regular judge of the Eighteenth judicial district, who presides over the district court of Roger Mills county, was disqualified to try this cause, and the Hon. James R. Tolbert, judge of the Seventeenth judicial district of the state of Oklahoma, was regularly assigned by the Chief Justice of the Supreme Court to try this cause.

to the criminal court of appeals in said action; that immediately thereafter the defendant demanded of the official court stenographer who acted in the trial of said cause a transcript of the evidence and the proceed. ings as taken by said stenographer during the progress of the trial of said cause, and defendant then and there paid to said stenographer the amount of money which said stenographer demanded for the performance of said work, and said stenographer then and there promised and agreed to take said Judgment was pronounced against the de- matter up at the earliest opportunity; that fendant on the 21st day of September, 1909. thereafter said stenographer failed to furand the defendant was allowed by the court nish the transcript and gave as an excuse the 30 days within which to make and serve a want of time in which to prepare the same; case-made. Subsequently to this time vari- that extensions of time were obtained on sevous orders were made by Judge Tolbert, eral occasions in order to procure the said granting the defendant extensions of time stenographic report of said stenographer, and within which to prepare and serve a case- the defendant and his counsel at all times made. The record shows that the case-made expected to receive such transcript from said was served on the 24th day of July, 1909. stenographer, until some time during the Under our system a special judge who pre- month of April, 1909, when counsel for the sides at the trial of a case may fix the time defendant were advised that the notes of the within which a case-made may be prepared stenographer had been lost or stolen and and served, but after he vacates the bench could not be found, and said counsel were adand loses control over the docket. he has vised that said stenographer had placed his no power to grant an order extending such stenographic report in a valise and had time. This has never been an open ques- checked said valise at the railroad depot. tion in Oklahoma. For a full citation and and the railroad company had lost the same, discussion of all the authorities on this ques- and that in said manner said books containtion, see Rasberry v. State, 4 Okl. Cr. 613, ing the notes and report of said stenographer 103 Pac. 865, 112 Pac. 759. If additional were hopelessly lost. Affiant further states time is desired for preparing and serving a that as soon as it was discovered that the case-made, application should be made either defendant would be unable to furnish a reto the regular judge of the district court or port prepared by said stenographer as a true to such judge who is then presiding in said and correct statement of the evidence predistrict, and is therefore the court; or the sented, and matters and things occurring at appellant may file a transcript of the record said trial, counsel for the defendant proceedin this court within the time originally granted to prepare a case from notes and memory ed, and, having thus perfected his appeal and this court having acquired jurisdiction of the cause, we have power, under section 6077 of Snyder's Comp. Laws of Okla. 1909, to grant the defendant such time as he may require to perfect and serve his case-made. This course was adopted by counsel for appellant in the case of Hunter v. State, 3 Okl. Cr. 535, 107 Pac. 444. For a full discussion of this question see John Farmer v. State (decided at the January term of this court)

114 Pac. 753.

and such data as they could gather together for the purpose of recalling and preparing a full and complete history of the proceedings of said trial. Affiant further states that in the preparation of the hereto-attached and foregoing case affiant has had at his command a stenographic report of the evidence taken at the preliminary trial of the defendant, and depositions taken prior to the trial of said cause, which said stenographic report of the proceedings at the preliminary trial and said depositions had been used and were used on an application made by defendant for bail prior to the trial of said cause; that with the exception of a few witnesses called at the trial by the state and a few called at the trial by the defend"R. B. Forrest, being first sworn according ant the evidence herein prepared is the testo law, on his oath states that he has been timony of the witnesses as given at the preone of the attorneys of the defendant from the liminary trial and in said depositions, and time of his arrest under the charge for which is in substance the same as the evidence of he was indicted in the above-entitled cause, said witnesses given in the trial of said at all times during the progress and history cause; that the foregoing and hereto-attachof said proceedings. Affiant further states ed prepared case contains a true and corthat on the conviction of the defendant in rect statement of the proceedings had at

Counsel for the appellant attempted to explain their failure to file a case-made in this court at an earlier date by the following affidavits:

"State of Oklahoma, County of Canadian.

said trial and contains, as nearly as it is | appeal upon the transcript of the record, bepossible to prepare and present the same, all the evidence that was presented in said trial; and affiant states that the same contains all the evidence presented at said trial bearing upon the matters at issue therein, and that the same is true and correct. R. B. Forrest. 3 Okl. Cr. 594, 107 Pac. 739. We must there"Subscribed and sworn to before me, this fore dismiss this appeal. 21st day of July, 1909. F. E. Sanson, Notary Public. [Seal.]

ma, and his whereabouts are unknown, as is w. S. Tanner is plaintiff in error, pending in disclosed by the affidavit of Jas. R. Wood, the Criminal Court of Appeals of the state county attorney of said county, which is at- of Oklahoma, and in which cases he was contached hereto and made a part of this mo-victed upon charges of violating the prohibittion, marked 'Exhibit A.' Wherefore, the Attorney General says that this appeal should be dismissed."

The

ory liquor laws of the state."

From the facts stated, the principles of law are the same as in the case of Tyler v. State, 3 Okl. Cr. R. 179, 104 Pac. 919, 26 L. R. A. (N. S.) 921, wherein this court said: "From a review of the authorities we are convinced that it is no part of our duty as an appellate court to consider or review the judgment, orders, and rulings of which he complains, while he is at large as an escaped convict. Such has been the uniform holding of the courts of last resort in other jurisdictions, and it meets our full approval. The appellant, by escaping from jail, where he was being held pending a determination of his appeal to this court, has voluntarily withdrawn himself from the jurisdiction of the court. So far as he has any right to be heard under the Constitution and the statute before this court, he must be deemed to have waived it by escaping from the custody of the law. Where a person convicted of a felony has escaped from the custody of the law, no order or judgment, if any should be made, can be enforced against him, and appellate courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of an escaped convict. While we find no express provision of our statute authorizing a dismissal of an appeal in a criminal case for the reason stated in the present motion, we are of opinion that the appellant by his own act has waived the right to have his case considered and de

In support of said motion is the affidavit of the county attorney of Coal county, the material part of which is as follows: "My name is Jas. R. Wood, my address is Coalgate, Oklahoma, and I am now the county attorney in and for the county of Coal, state of Oklahoma, and have been acting in that capacity continuously since the admission of the state into the Union. At the January, 1910, term of the county court of Coal county, state of Oklahoma, the above-named plaintiff in error, W. S. Tanner, was tried in said county court, and was convicted, upon a charge of having the unlawful possession of intoxicating liquors; his punishment being fixed by the jury trying the case at $300 fine and 90 days' imprisonment in the county jail. The date of the judgment was the 3d day of February, 1910, and the county court number of the case was 669. plaintiff in error, in due time, perfected his appeal to the Criminal Court of Appeals, where the cause is now pending. At the October, 1910, term of said county court, said plaintiff in error had pending therein three other cases, in one of which he was being prosecuted upon an indictment charging him with selling whisky unlawfully, and in the other two he was being prosecuted upon informations charging him with having the unlawful possession of intoxicating liquors, and he was under bonds for his appearance | termined. In this conclusion we are sustainat said term of said county court in each of ed by the authorities quoted, and many oththese cases. At said October, 1910, term of ers." said county court, a forfeiture was taken on From the failure to file briefs, it is eviplaintiff in error's said appearance bonds, dent that the prosecution has been abandonupon his failure to appear in accordance ed. The motion of the Attorney General to therewith, and suit ordered by the court to dismiss the appeal is sustained, and the be brought thereon. On the 17th day of De- cause remanded to the county court of Coal cember, 1910, suit was filed in said appear-county, with direction to enforce the judg ance bonds against the sureties thereon, since ment and sentence. which time said sureties have been endeavoring to ascertain the whereabouts of the said W. S. Tanner, and, as affiant has been informed, have offered liberal rewards for his arrest and return. Affiant states that said plaintiff in error went to Ft. Worth, Texas, in or about the month of August, 1910, where, according to affiant's best information and belief, he remained for the period of a month or two, and from which place, as affiant has been informed, said plaintiff in error went to New Mexico. Affiant states that, since said plaintiff in error left Coal county, state of Oklahoma, in or about the month of August, 1910, as aforesaid, he has not returned to the state of Oklahoma, that he is a fugitive from justice, and that his present whereabouts is unknown to the officers of Coal county. Affiant further states that there are two other cases, wherein the said

FURMAN, P. J., and ARMSTRONG, J., concur.

(5 Okl. Cr. 677)

TANNER v. STATE (two cases). (Criminal Court of Appeals of Oklahoma. March 21, 1911.)

Appeals from Coal County Court; R. H. Wells, Judge.

W. S. Tanner was convicted of a violation of the prohibition law, and appeals. Dismissed. Chas. West, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. W. S. Tanner, plaintiff in error, was convicted in the county court of Coal county for a violation of the prohibition law in two cases. Appeal was taken to this court in each case. filed motions to dismiss said appeals, for the The Attorney General has reasons as in the case of W. S. Tanner v. State,