Opinion
No. A-11183.
April 19, 1950.
(Syllabus.)
Appeal and Error — Cause Abated by Appellate Court on Showing of Death of Accused. The purpose of criminal proceedings being to punish accused, cause must abate on his death, and will be abated by appellate court on showing of death of accused pending determination of his appeal from judgment of conviction.
Appeal from Court of Common Pleas, Tulsa County; Leslie W. Lisle, Judge.
Howard Wilkerson was convicted of unlawful possession of intoxicating liquor, and he appealed. Proceedings abated because defendant had died before determination of appeal.
Elmore A. Page, Tulsa, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., and Lewis A. Wallace, Asst. Atty. Gen., for defendant in error.
Howard Wilkerson was charged in the court of common pleas of Tulsa county with the offense of unlawful possession of intoxicating liquor, found guilty by a jury, and sentenced to serve 60 days in the county jail, and pay a fine of $100. From such judgment and sentence an appeal was duly filed in this court.
This case was assigned for oral argument for March 22, 1950, at which time the attorney for plaintiff in error announced in open court that since the appeal was filed, the plaintiff in error had died. The county attorney of Tulsa county was present in court, and agreed that this was correct.
In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that the defendant has died pending the determination of the appeal, the cause will be abated.
It is therefore considered, ordered, adjudged and decreed that the proceedings in the above-entitled cause to abate, and the cause is remanded to the trial court with directions to enter appropriate order to that effect.
JONES, P.J., and BRETT, J., concur.