Appeal from County Court, Pottawatomie County; Clarence Robison, Judge.

T.S. Bason was convicted of the unlawful possession of intoxicating liquor, and he appeals. Remanded, with directions to abate.

T.G. Cutlip, for plaintiff in error.

The Attorney General, for the State.

Page 236

PER CURIAM. Plaintiff in error, T.S. Bason, was convicted, in the county court of Pottawatomie county, on an information charging the unlawful possession of intoxicating liquor, to wit, corn whisky, and was sentenced to be confined in the county jail for 30 days and to pay a fine of $50 and the costs. From the judgment an appeal by case-made and petition in error was perfected by filing the same in this court on February 7, 1923.

Since the appeal was taken and before the final submission of the cause, suggestion of the death of the plaintiff in error has been made, and his counsel of record has for this reason filed a motion to abate the cause, stating that plaintiff in error died on October 24, 1923.

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 proceedings in this cause and especially under the judgment rendered therein do abate.

The cause is therefore remanded to the county court of Pottawatomie county, with direction to enter its appropriate order to that effect.