(Syllabus.)

Appeal and Error — Abatement of Prosecution by Death of Appellant. 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 District Court, Garvin County; W.G. Long, Judge.

L.L. Calloway was convicted of robbery with firearms, and he appeals. Abated.

Hamilton, Gross & Howard, James H. Mathers, and Goodwin & Freeman, for plaintiff in error.

J. Berry King, Atty. Gen., for the State.

DAVENPORT, J. The plaintiff in error, hereinafter called defendant, was convicted in the district court of Garvin county of robbery with firearms, and was sentenced to serve a term of twenty-five years in the state penitentiary.

From the judgment of conviction, the defendant appealed to this court. The appeal was perfected July 20,

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1928, by filing in this court his petition in error with case-made attached. Since the appeal was taken, and after final submission of the cause, said defendant departed this life, as shown by statement of the warden of the state penitentiary at McAlester, Okla. In a criminal prosecution, 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 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.

CHAPPELL, J., concurs. EDWARDS, P.J., absent, not participating.