(Syllabus.)

Appeal and Error — Abatement of Cause on Death of Defendant. In a criminal action, the purpose of the proceeding being to punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that plaintiff in error has died pending the determination of his appeal, the cause will be abated.

Appeal from District Court, Texas County; Arthur G. Sutton, Judge.

Herschel Green was convicted of assault with intent to commit rape, and he appeals. Proceedings ordered abated.

Ross Rizley, R.B. Loofbourrow, Clyde Miles, and W.G. Hughes, for plaintiff in error.

Edwin Dabney, Atty. Gen., Smith C. Matson, Asst. Atty. Gen., and Orlando F. Sweet, Co. Atty., for the State.

DOYLE, P.J. Plaintiff in error, Herschel Green, was convicted of assault with intent to commit rape, and his punishment assessed at imprisonment in the penitentiary for a term of two years. On the judgment rendered in pursuance of the verdict, an appeal was perfected.

Since the appeal was taken, and before final submission of the cause, counsel for the state have filed a motion to abate the proceedings based on the death of plaintiff in error, who was killed in an automobile accident in the state of Kansas, near St. Johns, November 24, 1928, and was buried at Elkhart, Kan., on Tuesday, November 27, 1928.

In a criminal action, the purpose of the proceedings being to punish the accused, the action must necessarily abate upon his death.

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It is therefore adjudged and ordered that the proceedings in the above-entitled cause, especially under the judgment rendered, have abated, and that the district court of Texas county enter its appropriate order to that effect.

EDWARDS and DAVENPORT, JJ., concur.