Opinion
No. 4805.
Decided June 5, 1918.
Abating Appeal — Practice on Appeal.
Where, upon proper motion, it was made to appear to this court that appellant died pending his appeal, the case is hereby abated and dismissed.
Appeal from the District Court of Wise. Tried below before the Hon. F.O. McKinsey.
Appeal from a conviction of burglary; penalty, two years imprisonment in the penitentiary.
The opinion states the case.
Ratcliff Spencer and Benson Benson, for appellant.
E.B. Hendricks, Assistant Attorney General, for the State.
The Assistant Attorney General and the county attorney of Wise County have set up that the appellant herein died on May 27, 1918. They thereupon move that this case be abated. To the motion is attached the affidavit of the county attorney and the clerk of the District Court of Wise County wherein each swears that the appellant was killed on said date.
The motion to abate will, therefore, be granted. Postoifsky v. State, 28 S.W. Rep., 947; March v. State, 5 Texas Crim. App., 450. And it is ordered that said case be, and the same is hereby abated and stricken from the docket of this court.
Abated.