(Syllabus.)

Appeal and Error-Proceedings Abated by Death of Plaintiff in Error. 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 plaintiff in error has died pending the determination of his appeal, the cause will be abated.

Appeal from District Court, Wagoner County; Enloe V. Vernor, Judge.

Carl Deweese was convicted of assault with a dangerous weapon, and he appeals. Proceedings abated, and cause remanded, with directions.

Watts & Watts, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., and E. J. Broaddus, Co. Atty., for the State.

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DOYLE, J. The plaintiff in error Carl Deweese, was convicted in the district court of Wagoner county of assault with a dangerous weapon, and in accordance with the verdict of the jury was sentenced to confinement in the county jail for a term of three months. From the judgment rendered on the 25th day of November, 1936, an appeal was perfected by filing in this court on May 25, 1937, a petition in error with case-made.

Since the appeal was taken and before the final submission of the case the plaintiff in error departed this life, as shown by the motion of his counsel of record filed in this court June 3, 1937, averring that on May 27, 1937, he was killed in an automobile accident near Alice, Tex.

To which motion is attached the following:

"I hereby accept service of copy of the foregoing suggestion of death of plaintiff in error agree that same states the facts.

"This the 2nd day of June, 1937,

"E. J. Broaddus, County Attorney,

"Wagoner County."

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 died pending the determination of his appeal, the cause will be abated. Yota v. State, 10 Okla. Cr. 26, 133 Pac. 257; Martin v. State, 38 Okla. Cr. 309, 260 Pac. 780.

It is therefore considered, adjudged, and ordered that the proceedings in the above-entitled cause be abated; cause remanded, with direction to the trial court to enter its appropriate order to that effect.

DAVENPORT, P. J., and BAREFOOT, J., concur.

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