Conviction for felony theft; punishment, two years in the penitentiary.

The State moves to dismiss this appeal on the ground that while the motion for rehearing was pending this appellant made his escape from custody. The motion is accompanied by the affidavit of Leslie Stegall, Sheriff of McLennan county, Texas, in whose custody appellant was at the time, showing that on May 23, 1930, he made his escape from jail by sawing out certain bars and fleeing from said jail. The motion will be granted. The fact that later said prisoner was recaptured does not affect the law of the situation. Laughlin v. State, 97 Texas Crim. Rep. 370; Pendergrass v. State, 92 Texas Crim. Rep. 467; Maugia v. State, 90 Texas Crim. Rep. 539; Loyd v. State, 19 Texas Crim. App. 137.

The appeal is dismissed.

Dismissed.