Appeal from District Court, Ellis County; T. R. Wise, Judge.

Wyatt Hagan and Esther Bender were convicted of open and notorious adultery, and they appeal. Proceedings abated as to Wyatt Hagan because of his death.

C. B. Leedy, of Arnett, for plaintiffs in error.

Ma,c Q. Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and O. E. Enfield, Co. Atty., of Arnett, for the State.

PER CURIAM. Defendants Wyatt Hagan and Esther Bender were on the 9th day of April, 1940, convicted in the district court of Ellis county of the crime of open and notorious adultery, and their punishment was assessed at

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a fine of $500 for defendant Wyatt Hatgan and a fine of $200 for defendant Esther Bender, from which judgment and sentence they appealed to this court on the 17th day of July, 1940.

Since this appeal was taken, defendant Wyatt Hagan departed this life on the 10th day of February, 1941, as shown by affidavit of death filed in this court on February 17, 1941.

In a criminal prosecution, the purpose of proceedings being to punish the accused, the action must necessarily abate upon his death, and where it is made to appear that a defendant has died pending the determination of his appeal, the cause will be abated as to such defendant.

It is therefore considered, ordered, adjudged, and decreed that the proceedings in the above-entitled cause do abate as to defendant Wyatt Hagan, and the trial court is directed to enter its appropriate order to that effect.