ROBERT MILLER
v.
STATE.

ABATEMENT OF PROSECUTION--Death of Accused. Where pending writ of error in a criminal proceeding, plaintiff in error dies in the penitentiary, the proceeding abates.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Robert Miller was convicted of burglary, and brings error. On death of plaintiff in error, proceedings abated.

T. D. Taylor, for plaintiff in error.

The Attorney General and R. McMillan, Asst. Atty. Gen., for the State.

Page 194

Plaintiff in error, Robert Miller, was convicted in the district court of Pittsburg county on an information charging the crime of burglary by use of explosives and his punishment fixed at imprisonment in the state penitentiary for a period of 20 years. From the judgment rendered on the verdict on the 16th day of May, 1918, an appeal was perfected.

Unable to give supersedeas bond plaintiff in error was committed to the state penitentiary at McAlester. The Attorney General has filed a motion to abate, for the reason that plaintiff in error died in the penitentiary on the 27th day of October, 1918. Attached to the motion and made a part of the same is the affidavit of Sam L. Morley, warden of the state penitentiary at McAlester. In a criminal action, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death.

It is therefore considered and ordered that the proceedings in this action do abate. The district court of Pittsburg county is directed to enter its appropriate order to that effect.