(Syllabus.)

Appeal and Error — Appeal Dismissed Where Pardon Granted. When the pardoning power extends clemency, and the same is accepted pending the determination of an appeal, the appeal will be dismissed.

Appeal from District Court, Sequoyah County; J.H. Jarman, Judge.

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Cat Barnoskie was convicted of manslaughter in the first degree, and he appeals. Appeal dismissed and cause remanded.

Frye & Frye, for plaintiff in error.

The Attorney General, for the State.

DOYLE, J. Plaintiff in error, Cat Barnoskie, was tried for murder upon an information charging that in Sequoyah county on or about December 26, 1921, he did kill and murder one Roland Kenned, by shooting him with a shotgun. The jury returned a verdict finding him guilty of manslaughter in the first degree, and assessed his punishment at imprisonment in the penitentiary for a term of four years. From the judgment rendered in pursuance of the verdict, an appeal was perfected by filing in this court October 30, 1922, a petition in error, with case-made.

His counsel of record have filed a motion to dismiss his appeal, for the reason that on the 6th day of January, 1923, the said Cat Barnoskie was granted a full, complete, and unconditional pardon for the offense of which he was convicted. A duly certified copy of said pardon is attached to the motion to dismiss, which pardon was signed by Hon. J.B.A. Robertson, then Governor, and is duly and properly attested and authenticated by Hon. Joe S. Morris, then secretary of state, under the great seal of the state.

By numerous decisions of this court it is held that, when an appeal from a judgment of conviction is pending in this court, and the plaintiff in error applies for a pardon, and the same has been granted, and the fact that a pardon has been granted is brought to the attention of this court, the appeal will be dismissed. Ernst v. State, 17 Okla. Cr. 282, 187 P. 930; Brown v. State, 16 Okla. 505, 184 P. 912; Ballew v.

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State, 15 Okla. Cr. 645, 179 P. 945. It follows that the motion to dismiss the appeal is well founded.

It is therefore considered, adjudged, and ordered that this appeal be and the same is hereby dismissed, and the cause remanded to the trial court.

MATSON, P.J., and BESSEY, J., concur.