(Syllabus.)

Appeal and Error — Case Abated on Death of Defendant Pending Appeal. Where an appeal is prosecuted to this court from a conviction in a criminal case, and, pending the appeal, it is made to appear that the plaintiff in error has died, the case will be abated.

Appeal from County Court, Comanche County; John Manning, Judge.

N.C. Scott was convicted of violating the liquor law, and he appeals. Abated, with directions.

P.G. Fullerton, for plaintiff in error.

Edwin Dabney, Atty. Gen., for the State.

EDWARDS, P.J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Comanche county of the violation of the liquor law, and his punishment fixed at confinement in the county jail for a period of 30 days and a fine of $200.

From the judgment of conviction the defendant appealed to this court. The appeal was perfected on August 15, 1927, by filing in this court his petition in error with case-made attached. Since the appeal was taken, and before final submission of the cause, said defendant departed this life, as shown by statement of the attorney of record for defendant. In a criminal prosecution, the purpose of the proceeding being to

Page 288

punish the accused, the action must necessarily abate upon his death, and, where it is made to appear that the plaintiff in error has died pending the determination of his appeal, the cause will be abated. It is therefore ordered that the said cause do abate, with directions to the trial court to enter its appropriate order to that effect.

DAVENPORT and CHAPPELL, JJ., concur.