majority"> Per Curiam.

This was a motion by the solicitor of the State to dismiss the appeal of William H. Carpenter, who, it appears, *550is now held in jail by the sheriff of Edgefield County. Certain attorneys, while declaring that they do not represent the defendant and appellant, have called the attention of the court to the fact that the defendant is not present in this court, and that he is now confined within the jail of Edgefield County, and this latter fact also appears from the motion papers. It further appears that the defendant was personally served with a copy of this notice in the jail of Edgefield. If the defendant was at liberty, his non-appearance might be construed as a waiver of his right to be present in court at the hearing of this motion. But as he is restrained of his liberty, and is now incarcerated, his non-appearance cannot be accepted as a waiver of his right to be present. It is, therefore, ordered, that the further hearing of this motion be postponed until Tuesday, May 15, at 5 o’ clock in the afternoon, and that the sheriff of Edgefield County do produce and have in this court on the said day the body of the said William H. Carpenter, now in the jail of Edgefield County, and that he keep the said W. H. Carpenter in this court until the said motion has been heard, or until the further order of this court. Ordered, that a copy of this order, certified by the clerk of this court, be served upon the sheriff of Edge-field County.

The prisoner having been produced in the Supreme Court at the time appointed, counsel heard, and the matter considered, the following order was passed May 16, 1894,

Pee Cueiam.

The defendant, William H. Carpenter, having been brought before this court on notice of motion to reinstate the appeal in the above stated case on the docket of this court, and then to dismiss said appeal as to the defendant, William H. Carpenter, the said appeal, so far as the defendant Murrell was concerned, having been heard at the April Term, 1890, and at said hearing the said defendant Carpenter having-escaped from jail, and being beyond the jurisdiction of this court, for which reasons the said court suspended his appeal, and refused to hear same, and the said defendant having been recaptured, and lodged in the jail of Edgefield County, on the day of December, 1893, and since his arrest, up to the time of the service of the said notice upon him, to wit: the 28th day of April, 1894, has done nothing, either by his attorneys *551of record or himself, to prosecute his said appeal, and is now brought before the court on motion of the solicitor, it is ordered (1) that the said case be reinstated upon the docket of this court; (2) that the appeal of the defendant, William H. Carpenter, be dismissed for want of prosecution, and the case remanded to the Circuit Court for Edgefield County, for the purpose of having a new day assigned for the execution of the sentence heretofore imposed.

Nelson, solicitor, for the motion. 8. MeG. SimMns, contra.

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