People v. Sharkey

The affidavit in the case shows, that, after judgment, and prior to the escape from jail of Sharkey, a writ of error and stay of proceedings were duly allowed by one of the justices of this court, and, that subsequent to the escape, a writ of certiorari was allowed to bring up matters dehors the record.

In the case of the application of Henry W. Genet,^[1] for a mandamus, this court have come to the conclusion that the convict, who thus escapes and remains a fugitive, cannot require, at the hands of the courts or judges, any proceeding in his favor, or insist upon any steps adverse td the prosecution, but that his rights to act adversely to the people, are waived and suspended by his own criminal conduct.

The effect of this act is to leave the case in statu, .quo, so far as action of the convict is concerned.

The court would not, therefore, take any action on his motion or behalf. But it does not follow" that courts may, on motion of the people, deprive him of the benefit of proceedings already taken before his escape. We think, therefore, that the writ of error should not be quashed.

The certiorari might properly have been denied; but as it is auxiliary to the writ, and as the court below will not be compelled to make return to either writ, until Sharkey shall be again in custody, within the jui’isdiction of the court, we think the better course is to deny the motion in both its aspects.

Bradt, J., concurred.

Motion denied.