Forsom v. State (38 S.W.2d 804, 1931)

MORROW, P. J.

The offense is burglary; penalty assessed at confinement in the penitentiary for a period of two years.

There has been filed the affidavit of the sheriff of Clay county in accord with article 824, C. C. P. 1925, showing the escap'e of the accused on the 6th day of April, 1931, and his capture and -reincarceration on the Sth of that month.

The appellant has filed a controverting affidavit admitting the escape but claiming a voluntary return. The facts set up in his affidavit, considered in their strongest light in his favor, do not show a voluntary return. In his fli he was overtaken by the sheriff and arrested. His affidavit is to the effect 4that he intended to continue' his flight until he had visited his family and that after such visit it was his intention to return to jail. This does not, in our judgment, bring him within the terms of the statute mentioned. See cases cited in Vernon’s Ann. Tex. C. C. P. 1925, vol. 3, p. 194, note 7; also, Reeves v. State, 109 Tex. Cr. R. 649, 7 S.W.(2d) 87.

The appeal is dismissed.