ABATEMENT OF PROSECUTION — Death of Plaintiff in Error. In a criminal action, the purpose of the proceeding being to punish the defendant in person, the action must necessarily abate upon his death.

Appeal from District Court, Sequoyah County; John H. Pitchford, Judge.

William Holmes was convicted of manslaughter in the first degree, and he appeals. Ordered that the proceeding abate.

Frye & Frye, for plaintiff in error.

R. McMillan, Asst. Atty. Gen., and Luther Kyle, Co. Atty., for the State.

DOYLE, P.J. The plaintiff in error, William Holmes, was, by information, charged with killing W. Baxter Graham, in Sequoyah county, on the 14th day of February, 1915, by shooting him with a shotgun. Upon his trial he was found guilty of manslaughter in the first degree, and was sentenced to be imprisoned in the penitentiary for the term of ten years. From the judgment he appealed by filing in this court on June 12, 1916, a petition in error, with case-made. On the 10th day of January, 1917, while his appeal was pending and awaiting decision before this court, he departed this life. His counsel of record have filed a motion to abate, in part as follows:

"That the defendant, William Holmes, who departed this life as aforesaid, and the plaintiff in error herein,

Page 258

was one and the same person, as appears from the statement of Luther Kyle, the county attorney of Sequoyah county, State of Oklahoma, filed herewith, marked Exhibit C and made a part of this motion as if copied herein in words and figures. That the purpose for which this appeal was taken has now abated, and that the final determination thereof is unnecessary, and that the same should be abated and does by law abate upon the death of plaintiff in error."

Attached to said motion is the following statement:

"I, Luther Kyle, the duly elected, qualified and acting county attorney, within and for the county of Sequoyah, State of Oklahoma, do hereby certify that I was personally acquainted with William Holmes, who was the plaintiff in error in the above-styled cause, and that the said William Holmes who departed this life in the city of Sallisaw, Sequoyah county, State of Oklahoma, on or about the 10th day of January, A.D. 1917, was the said plaintiff in error.

"[Signed] LUTHER KYLE, County Attorney."

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 Sequoyah county enter its appropriate order to that effect.

ARMSTRONG and BRETT, JJ., concur.