Opinion
No. A-2260.
Opinion Filed July 3, 1918.
ABATEMENT OF PROSECUTION — Death Pending Appeal. In a criminal prosecution, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.
Appeal from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.
Billy Polson was convicted of keeping and maintaining a place with intention of selling intoxicating liquor. He appealed, and died pending the appeal. Motion to abate proceeding granted.
Mark Goode, for plaintiff in error.
R. McMillan, Asst. Atty. Gen., for the State.
The plaintiff in error, Billy Polson, was convicted in the district court of Pottawatomie county on a charge that he did keep and maintain a place with the unlawful, willful, and felonious purpose and intention of selling intoxicating liquors, and in accordance with the verdict of the jury he was sentenced to serve a term of 15 months' imprisonment in the state penitentiary. To reverse the judgment an appeal was perfected. While his appeal was pending and awaiting decision before this court he departed this life. His counsel of record has filed a motion to abate the proceeding.
In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death. It is therefore considered and adjudged that the proceeding in the above-entitled cause, and especially under the judgment therein rendered, has abated, and that the district court of Pottawatomie county enter its appropriate order to that effect.
ARMSTRONG and MATSON, JJ., concur.