However, the great majority of courts which have considered the question have concluded that the death of a defendant pending an appeal of a fine abates not only the appeal but all the proceedings ab initio. ( State v. Stotter (1946), 67 Idaho 210, 175 P.2d 402; State v. Bradley (1940), 229 Iowa 92, 293 N.W. 858; State v. Blake (1977), 53 Ohio App.2d 101, 371 N.E.2d 843; State v. Clark (1977), ___ S.D. ___, 260 N.W.2d 370; Crooker v. United States (8th Cir. 1963), 325 F.2d 318; United States v. Knetzer (S.D. Ill. 1954), 117 F. Supp. 917 (citing O'Sullivan v. People (1892), 144 Ill. 604); see also Annot., 83 A.L.R.2d 864 (1962), citing older cases.) The rationale is that the fine was imposed by way of punishment of the defendant and upon his death there is no justice in punishing his survivors for his offense.
James Leo Holbrook died during the pendency of the appeal and the action is abated ab initio as to him. State v. Bradley, 229 Iowa 92, 293 N.W. 858. We refer to Reaves Martin Holbrook as defendant.
"Effect of Death of Defendant Pending Appeal," 83 A.L.R.2d 864; 21 Am.Jur.2d, Criminal Law, § 608; 24A C.J.S. Criminal Law § 1702. This position has been previously adopted by the South Dakota Supreme Court in State v. Guffey, 52 S.D. 95, 216 N.W. 860, by the United States Supreme Court, Durham v. United States, 401 U.S. 481, 91 S.Ct. 858, 28 L.Ed.2d 200, and by surrounding states who have considered the question, State v. Bradley, 229 Iowa 92, 293 N.W. 858; State v. Campbell, 1972, 187 Neb. 719, 193 N.W.2d 571; People v. Elauim, 1975, 393 Mich. 601, 227 N.W.2d 553; State v. Free, 1927, 37 Wyo. 188, 260 P. 173; State v. Hale, 1954, 128 Mont. 116, 270 P.2d 993. The inclusion of a fine does not operate to alter the rule of abatement of all proceedings. Crooker v. United States, 1963, 8 Cir., 325 F.2d 318; State v. Stotter, 1946, 67 Idaho 210, 175 P.2d 402. State v. Sholiton, 1954, 70 Ohio L.Abs. 385, 128 N.E.2d 666; Commonwealth v. Walker, 1972, 447 Pa. 146, 288 A.2d 741; Commonwealth v. Culpepper, 1972, 221 Pa. Super. 472, 293 A.2d 122; State v. Jones, 1976, 220 Kan. 136, 551 P.2d 801.
We hold that all proceedings are permanently abated as to appellant by reason of his death pending the appeal. Daniel v. United States, 268 F.2d 849 (5th Cir. 1959); People v. Dail, 22 Cal.2d 642, 140 P.2d 828 (1943); State v. Bradley, 229 Iowa 92, 293 N.W. 858 (1940). The appeal is dismissed and the action ordered abated ab initio.
However, in a criminal prosecution the object of which is to [2] enforce the criminal law and to punish the person found guilty of its violation, the almost universal rule is that the death of the convicted person pending his appeal from a judgment of conviction abates the appeal. (Howard v. Wilbur, supra; Morgan v. State, 30 Ala. App. 510, 9 So.2d 33; State v. Levin, 1948, 137 N.J.L. 69, 58 A.2d 231; Frank v. State, 1948, Md., 56 A.2d 810; State v. Wilson, 1947, Okla. Cr. App., 184 P.2d 634; Jones v. State, 1947, Tex. Cr. App., 205 S.W.2d 786; Dixon v. State, 1947, Tex. Cr. App., 204 S.W.2d 839; State v. Stotter, 67 Idaho 210, 175 P.2d 402; State v. Stevens, 1945, 133 N.J.L. 488, 44 A.2d 713; People v. Dail, 22 Cal.2d 642, 140 P.2d 828, 837; State v. Fanalous, 99 Utah 322, 106 P.2d 163; State v. Bradley, 229 Iowa 92, 293 N.W. 858; List v. State of Pennsylvania, 131 U.S. 396, 9 S.Ct. 794, 33 L.Ed. 222; Singer v. United States, 323 U.S. 338, 65 S.Ct. 282, 89 L.Ed. 285; St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 and annotations at page 1234, subdiv. V; State v. Kriechbaum, 219 Iowa 457, 258 N.W. 110, 96 A.L.R. 1317 and annotations at page 1322; 24 C.J.S., Criminal Law, sec. 1702 at page 381, notes 83-88, sec. 1825 at page 650, note 76; 17 C.J., Criminal Law, sec. 3512 at page 194, note 4, and 3 Am.Jur., Criminal Law, sec. 733 at page 311, note 17.
We note that the cases cited inMazzone fail to draw the distinction now advanced by the State. See Mazzone, 74 Ill.2d at 47, citingState v. Stotter, 67 Idaho 210, 175 P.2d 402 (1946)(defendant sentenced to 30 days in jail and $300 criminal fine — conviction abated in its entirety); State v. Bradley, 229 Iowa 92, 293 N.W. 858 (1940)(defendant sentenced to both prison term and payment of a fine — conviction abated); State v. Blake, 53 Ohio App.2d 101, 371 N.E.2d 483 (1977)(rejecting argument that fine should not be abated); State v. Clark, 260 N.W.2d 370 (S.D. 1970)("inclusion of a fine does not operate to alter the rule of abatement of all proceedings"); Crooker v. United States, 325 F.2d 318 (1963)(fine and prison sentence — conviction abated in its entirety); United States v. Knetzer, 117 F. Supp. 917 (S.D. Ill. 1954)("fine is a part and parcel of the judgment or punishment, and also abated upon the death of the defendant"). It follows that the supreme court did not intend the rule of abatement ab initio to apply only to those cases involving criminal fines.
Idaho: State v. Stotter (1946), 67 Idaho 210, 175 P.2d 402. Iowa: State v. Bradley (1940), 229 Iowa 92, 293 N.W. 858. Louisiana: State v. Morris (1976), ___ La. ___, 328 So.2d 65.