ABATEMENT OF PROSECUTION — Death of Accused. In a criminal prosecution, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death; and, where it is made to appear to the court that a plaintiff in error has died, pending the determination of his appeal, the cause will be abated.

Appeal from District Court, Choctaw County; C.E. Dudley, Judge.

Will Fisher was convicted of murder, and he appeals. Prosecution abated.

Cunningham & Hunter, Richardson & Warren, and P.J. Hurley, for plaintiff in error.

S.P. Freeling, Atty. Gen., and R. McMillan, Asst. Atty. Gen., for the State.

DOYLE, P.J. The plaintiff in error, Will Fisher, and George Jones were jointly informed against for the murder of one Silian Fisher, alleged to have been committed in Choctaw county on or about the 8th day of November, 1915. Upon his separate trial the jury returned a verdict, finding Will Fisher guilty of murder and fixing his punishment at death. In pursuance of the verdict he was sentenced to suffer death by electrocution. From the judgment and sentence an appeal was taken to this court.

It appears from the record that Morris Fisher and Silian Fisher, his wife, parents of Will Fisher, full-blood Choctaw Indians, were murdered at their home in Choctaw county on the date alleged in the information. Insanity was the defense.

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Since the appeal was taken and after the final submission of the cause, the plaintiff in error departed this life, as shown by the affidavits of Dr. C.C. Shaw, prison physician, and Stan Mason, of the hospital ward, who depose and say that they personally knew the plaintiff in error, Will Fisher, who was imprisoned in the penitentiary upon a judgment of conviction for murder, and that he died within the walls of the penitentiary at 10:45 a.m., October 7, 1917, and that they viewed his dead body. These affidavits are attached to and made a part of the suggestion of the death of the plaintiff in error made by the Attorney General, and filed in this court on October 23, 1917.

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 adjudged and ordered that all proceedings in this prosecution be abated by reason of the death of the plaintiff in error, Will Fisher, and the district court of Choctaw county is directed to enter its appropriate order to that effect.

ARMSTRONG and MATSON, JJ., concur.